Posted on November 6, 2017 by Stephen L. Kass

On this 10th anniversary of the founding of ACOEL, it is appropriate to devote some thought to what we have achieved in furthering ACOEL’s goals of “maintaining and improving the ethical practice of environmental law; the administration of justice; and the development of environmental law at both the state and federal level.” My focus here is on the most significant threat in our history to our third goal (development of environmental law) and, as a consequence, our second goal (administration of justice).

For the first time since the enactment of the National Environmental Policy Act (NEPA) in 1970, our federal government is led by officials (the President, the EPA Administrator, the Secretaries of Energy and Interior, the Attorney General and White House staff)  openly committed to eviscerating or repealing  large portions of the federal laws on which environmental protection in our country is premised.  While there have been times when new administrations,  EPA Administrators or Cabinet Secretaries have sought to reverse policies or programs under individual statutes, our nation has not previously experienced a wholesale attack on the entire range of protections promised by NEPA, the Clean Air Act, the Clean Water Act, the Superfund Law, the Toxic Substances Control Act, the Oil Pollution Act, the Endangered Species Act, the Coastal Zone Management Act and a myriad of less well-known laws and regulations that have helped the U.S. confront our own environmental challenges while leading the world in the development of environmental law.  Because environmental impacts are increasingly recognized as disproportionately affecting the poor, the curtailment of environmental enforcement under many of these laws also undermines the belated efforts our nation has begun to make toward environmental justice.  The White House’s and EPA’s joint denial of human-induced climate change (and the censoring of EPA employees who attempt to speak about it) is the most visible – and dangerous – part of this initiative, but it is only part of the larger effort to rescind or hollow out the body of environmental law on which our nation, and the world, have come to depend.

ACOEL should speak and act to reverse this dangerous and irresponsible trend within our federal government.  I recognize that many of our individual members, or their firms, may represent one or more clients who believe that, at least in the short run, their businesses will benefit from fewer environmental regulations, more lenient enforcement of environmental standards or the reversal of efforts to reduce greenhouse gases.  Because of their professional commitments, it is of course appropriate, and in some cases necessary, for those ACOEL members to recuse themselves from participation in any such statements or actions by our organizations as a whole.  Yet ACOEL has acted as an institution in the past in advising ECOS (the Environmental Council of the States) on Clean Air Act and Clean Water Act developments, and we are currently carrying out, or planning, important environmental law training programs in Africa, Asia and Cuba.  To do that with credibility requires that we actively defend, both publicly and privately, the corpus of environmental law of which we are justly proud in our own nation.  ACOEL’s goals, and our organization’s significance, require that we do no less.

Comments (2) -

Peter Van Tuyn United States
11/7/2017 12:18:38 PM #

Thank you for your post Steve.  I wholeheartedly agree.  The very foundation of our environmental laws is at risk, both in the executive and representative branches of our federal government.  Perhaps as a start, ACOEL could send an open letter to President Trump or CEQ expressing its views on the benefits to our environment, people and economies of our environmental laws.  

John Hall United States
11/7/2017 12:33:45 PM #

I have been in practice for approaching 35 years and until the Obama Administration, I had never witnessed the degree of APA public participation and 'ad hoc' rule modification violations, hiding records that disclosed such illegal activities and purposeful manipulation of/complete disregard for scientific information that conflicted with the intended "political science" decision making of the appointed agency officials - who typically had come from environmental organizations - I might observe.

So, I'm not sure precisely what "dangerous and irresponsible trend" or "evisceration" you are talking about.  Your post is little more than diatribe and hyperbole, the likes of which has become common place in the media.   The current administration, in my experience, is hardly dismantling the body of statutory provisions that are in place.  Congress, as you know, would have to do that - and they have not.    

Moreover, the tone of your post implies that global warming is some type of immediate threat that must be reversed (versus other serious human condition/environmental issues).  This line of argument is seriously imbalanced and little more than a cudgel for environmental groups to gather members and increase resources (follow the money).  New York was under a mile of ice 20,000 years ago.    If the planet had not been warming ever since NYC would not even exist.  You might want to look at the last 100,000 years of sea level change to be informed that the same pattern of heating and cooling has repeatedly occurred - with no human influence.  Has humankind increased global warming - certainly - though only to a small fraction of what has already occurred naturally.  Can the condition be reversed - no one is claiming that.  Notably, the trillions per year needed to reach eco-nirvana for some on this issue would cause global famine and economic collapse for many countries.  Not a particularly good idea unless war and famine to replace concerns with global warming.  I trust not.  

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