Can Environmental Lawyers Save The Earth

Posted on April 8, 2015 by Charles Tisdale

What is your favorite place on Earth.  The beach.  The mountains.  A hiking trail to a waterfall.  A river or lake.  People are drawn to water, mountains, and forests.  Being in nature switches off the analytic left brain, turns on the creative right brain, and activates the heart and body.  Experiencing the environment is like mindful meditation. 

What is the biggest challenge the world faces?  Controlling technology.  Curing diseases.  Making the world safer.  Preventing a nuclear disaster.  Overcoming poverty.  Preventing another economic depression.  Reducing illiteracy.  We can address many of these social problems.  However. we cannot control nature.  We have to learn to live with nature.  If we cannot learn to live with nature. we will destroy the earth and ourselves.

Sea levels are rising faster and glaciers are melting more rapidly now than in 1950.  Hurricane Katrina and Super Storm Sandy are powerful reminders that man cannot control nature.  Record snowfalls in the northeast shut down many activities in 2014 and 2015.  California is in a prolonged drought.   

In the 1970’s, America’s concern for the earth led Republicans and Democrats to create the laws and regulations which are universally recognized as the most successful environmental laws in the United States.  Other countries used these laws as models.  These laws include the 1970 Clean Air Act, the 1972 Clean Water Act and the 1976 hazardous waste law.  Richard Nixon created EPA in 1970.  April 22, 1970 was the first Earth Day.

The Clean Air, Clean Water and hazardous waste laws are still used to limit the discharge of pollution into the environment.  However, science has discovered new environmental problems and sources of pollution which require amendments to the 1970’s laws or new regulations.

Congress will not amend the 1970’s laws to give EPA the authority to control new sources of pollution.  Congress opposes new regulations proposed by EPA.  Many legislators contend that additional pollution controls will bankrupt American industry because other countries can make cheaper products since their industries do not have to pay for pollution controls.

What motivated Congress to create the Clean Air, Clean Water and hazardous waste laws in the 1970s?  I believe that powerful images of environmental crises  captured in photographs touched everyone, regardless of their political party.  (1) The Cuyahoga River catching fire near Cleveland in 1969.  (2) Chattanooga air pollution so dark that headlights were necessary to see at noon on a sunny day.  (3)  Containers leaking hazardous waste into the Valley of the Drums in Kentucky.

Has our concern for the earth disappeared?  No.  Businesses and citizens are finding sustainable solutions to environmental problems.  Recycling saves money.  Businesses and citizens will not buy unhealthy products.  Consumers want utilities to use nature’s energy: sun, wind and water.  Local farms and gardens provide more of our food.

Americans are still concerned about the earth.  Scientists tell us that emissions from cars cause air pollution which prevents children from playing outside on hot sunny days in Atlanta, Houston and Los Angeles.  Runoff from cities and farms causes pollution which makes some rivers unsafe for swimming.  Why have our concerns and new scientific discoveries not led Congress to take actions to address today’s most serious environmental issues?  How can we educate our leaders and generate the consensus that leads to support of new pollution controls.  What are the actions, the events and the pictures that will motivate Americans to find the common understanding needed to agree on new laws and regulations.

Environmental lawyers can save the earth.  Why and How?

Why?

Environmental lawyers care about the environment.  We may fight about how clean is clean.  We may disagree on how stringent an air or water discharge standard must be.  But we all want to reduce pollution to levels that protect human health and the environment and are cost effective.

How?

(1)        Education – Environmental lawyers representing industry, EPA, states and environmental non-profits learn the relevant scientific facts and applicable laws.  Environmental lawyers can teach clients, legislators, agency officials, judges and the public.

Education is critical to reaching agreement on action to protect the environment.

(2)        Advocacy – Environmental lawyers are trained to marshal the facts and law and advocate for change in legislatures and courts.  Environmental lawyers are experts in relevancy and advocacy.

(3)        Facilitated Agreements – Environmental lawyers representing industry, government and environmental advocacy groups regularly resolve environmental disputes without litigation or soon after litigation is commenced.

Environmental lawyers know that litigation is a last resort.  Environmental lawyers can teach their clients that a mediated settlement is superior to giving up control of the outcome to a judge. 

(4)        Alternative Dispute Resolution – When the operator of a hazardous waste site cannot clean up the site, the parties who sent waste to the site must clean it up.  Environmental lawyers created a mediation process which enables each company to agree on a percentage of the cleanup cost without lengthy litigation.  The mediation process enables the companies to clean up hazardous waste sites faster and cheaper than EPA. 

(5)        Cleanup of Contaminated Property - In the 1980’s, environmental lawyers created the “Brownfield” process in which a natural biological solution is used to clean up contaminated property so that it can be used again.  The private sector taught EPA that waste sites could be reused rather than abandoned.

(6)        Private Sector Cleanup – Legislators and EPA set the pollution standards.  However, environmental lawyers and the private sector can clean up pollution faster and cheaper that any governmental agency.

(7)        Aid To Other Countries – Congress is concerned that new environmental regulations will be so expensive that U.S. businesses will not be able to compete with other countries who continue to pollute.  China is often used as an example.  Lawyers from the American College of Environmental Lawyers (ACOEL) have given free legal advice to the Chinese government on how to eliminate pollution through use of daily fines, a concept that was fundamental to enforcement of the 1970’s Clean Air and Clean Water laws.  Chinese companies are spending money on pollution control.  American industry will not be at a competitive disadvantage in pricing its products.

(8)        White Papers – In 2014, ACOEL lawyers prepared “White Papers” explaining the facts and law on proposed EPA water and air regulations.  Lawyers representing all views worked together on the White Papers.  The White Papers educate.  They do not advocate.  State environmental agencies have praised these White Papers.

Can Environmental Lawyers Save the Earth?  Yes we can.  We need to continue educating our children, our citizens, and our leaders in business, government, and nonprofits.  The 1970s environmental laws and regulations can be amended to save the earth.  



Comments (1) -

Chris Davis United States
4/8/2015 12:15:04 PM #

Great piece on the big picture, as we approach the 45th anniversary of Earth Day.  We environmental lawyers tend to get bogged down in the weeds on the issues central to our practices and our livelihoods, and lose sight of the alarming and accelerating degradation of the ecosystems on which life and our economy (and our clients and families and communities) depend. If we who understand these issues and are trained as advocates don't each take responsibility and contribute meaningfully to solving them, who will? I'd suggest we start by speaking the truth, publicly and to our clients and communities, on climate change, and taking personal and professional action to help mitigate the mother of all sustainability challenges.

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