Those Proposed NEPA Rules: A 50th Anniversary Gift?
Scott Fulton - Environmental Law Institute
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Scott Fulton

It seems to be the season for 50th anniversaries. The National Environmental Policy Act, signed into law by President Nixon on January 1, 1970, is now a half century old. The first day of a new decade was no doubt seen as a symbolic moment for NEPA’s signing, but I wonder whether the statute’s framers could have envisioned the full reach of that symbolic step.

NEPA signaled the beginning of the modern environment era and was the first of many actions that would redefine our orientation toward the environment and attempt to march the country toward a more sustainable future. It also set an important marker for the rest of the world, with environmental impact assessment becoming one of the most imitated and enduring features of the global environmental legal architecture.

Now, 50 years later, change is in the air, as the administration considers a rather sweeping rewrite of NEPA’s implementing regulations. The ELI community no doubt includes those both for and against significant revision. My goal here, in keeping with the Institute’s nonpartisan wiring, is to help folks find Waldo in the 47-page Federal Register proposal — to shine a light on some of the most significant proposed changes.

The proposed rule may at first blush look like a walk through traditional NEPA terrain. Because it is set out as a wholly revised chapter, it takes a good deal of work to discern where language has been changed, moved, or excised. On close inspection, however, the changes are dramatic and potentially far reaching. Here are some that in our view deserve a close and searching look.

Importantly, the term “cumulative” has been excised from every point in the proposed regulations, except for the addition of a sentence stating, “Analysis of cumulative effects is not required.” Similarly, categorical exclusions would no longer be evaluated for cumulative impacts. Under the proposal, cumulative and indirect impacts are not to be used in determining the threshold of significance (whether an EIS is needed), and are no longer to be analyzed in EAs or EISs.

While climate change is never mentioned in the proposal, the restriction on cumulative or indirect impacts has obvious significance in that context. But cumulative impact concerns under NEPA predated worries about climate change. How would these limitations affect consideration of environmental justice issues? How would they affect watershed, air shed, and landscape protection considerations?

Further limitations on the scope of review will prevent agencies from considering alternatives not within their own jurisdiction. The rule would interpret DOT v. Public Citizen to prohibit agencies from analyzing or considering “any effects that the agency has no authority to prevent.”

The proposed rule would allow applicants themselves to prepare environmental impact statements and assessments (under guidelines from federal officials and ultimately signed by a federal official); would no longer require the lead agency to select the contractors performing EISs and EAs; and would remove existing conflict-of-interest requirements for contractors.

In a novel procedural innovation, the proposed rule would require the lead federal agency to issue a finding itself at the end of the NEPA process that it has adequately considered all “alternatives, information, and analyses submitted by public commenters” and states that this finding and “certification” would create a “conclusive presumption” that is binding on the courts.

The proposal encourages federal agencies to require that commenters and public opponents of an action post a financial bond for a stay if they contest a final agency decision.

Finally, the proposal would expressly preempt existing and future agency NEPA requirements, thus effectively setting a ceiling on federal environmental review: “Agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these regulations.”

There are many other changes scattered across the proposed rule. Some of these are important alterations intended to tighten timelines and increase interagency coordination and accountability. At bottom, if promulgated in this form, the proposed rule may well serve to exclude from NEPA review altogether some actions that would have heretofore gone through the process, as well as eliminate many environmental effects that agencies typically analyze.

In this sense, the proposal stands in fairly sharp contrast to prior reform efforts aimed at making NEPA review function more efficiently and effectively. This much is clear. What emerges from this proposal may well determine the law’s fate and role in the next 50 years.

Those Proposed NEPA Rules: A 50th Anniversary Gift?

ELI Report
Anna Beeman - Environmental Law Institute
Environmental Law Institute
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ELI-NEPA Anniversary CEQ chair and senator keynote event honoring 50 years under the foundational environmental law

December 22, 2019, marked ELI’s 50th anniversary and half a century since Congress enacted the National Environmental Policy Act. In honor of the two, ELI hosted Navigating NEPA 50 Years Later: The Past, Present, and Future, as the culminating event of the Institute’s anniversary programming, cosponsored by Dentons LLP.

“NEPA is thought of as a procedural statute, with the requirement of development of an Environmental Impact Statement,” said President Scott Fulton in introductory remarks. “But NEPA was always intended to be more than this — it is an environmental quality manifesto. It raises questions for the future, concerning sustainability, environmental justice, and distribution of environmental benefits and burdens.”

Mary Neumayr, chair of the White House Council on Environmental Quality, gave the morning keynote. She delved into the history of NEPA and the principles of the act, setting the stage for a four-panel seminar covering NEPA’s process, legacy, and future.

The first panel explored the evolution of NEPA since enactment. Moderated by ELI’s director of the Sustainable Use of Land Program, James McElfish, panelists explored the opportunities and obstacles of establishing and implementing this regulatory framework.

Suzanne Schaeffer, counsel at Dentons, offered remarks on her experience in working on NEPA analysis for tribes, specifically in land acquisition, and the obstacles tribes have faced when undertaking a NEPA analysis.

The second morning session featured best practices when approaching NEPA’s regulatory process. Panelists discussed tools for preparing effective documentation, methods for engagement with the public and with project proponents during all stages of the process, as well as promoting environmental and climate justice within the statute.

Edward Boling, CEQ’s associate director, highlighted NEPA success stories, the importance of coordinating the EIS timeline with other reviews and schedules, and working to maximize public engagement. “The focus of NEPA should be effective collaboration and conflict resolution,” he said, in addition to incorporating environmental justice concerns.

Afternoon keynote speaker Senator Tom Carper (D-DE) offered remarks on the legacy and future of the act. “NEPA reminds us that our government is run for the people, by the people,” he said. The act “remains the most imitated environmental legislation in the world,” adding that the legacy of the NEPA process lies in providing the opportunity for Americans to engage in the decisionmaking process.

The third panel investigated the role of the project proponent in NEPA reviews and the relative roles of the lead federal agency, cooperating agencies, and consultants. Panelists confronted the unwritten rules of NEPA reviews. Brenda Mallory, executive director and senior counsel of the Conservation Litigation Project, said that more engagement with stakeholders is needed, as well as honest and transparent discussions with coordinating groups. WSP Vice President of the Environmental Policy Practice Manisha Patel posed the need for accommodating private sponsor involvement and coordination with the public sector to manage risk and increase efficiency of infrastructure projects.

The final panel tackled reinvigoration of the law, as panelists looked toward the act’s future. Panelists explored recent developments regarding permitting, project approval, collaboration with regulatory agencies, recent legislation that may affect NEPA, and climate change.

In his closing remarks, Nicholas Yost, former partner at Dentons and former general counsel at the White House Council on Environmental Quality, where he managed NEPA’s implementing regulations in the 1970s, highlighted a common message established throughout the seminar. There has “been a lot of progress,” Yost said, “but we will continue to have discussions on if what we are currently doing is right.”

Judicial conference in Hawaii promotes environmental rule of law

Courts across the globe are deciding cases regarding ecosystem changes, challenges to water security, and extreme events. These risks are unevenly distributed and are greater for disadvantaged people. Judiciaries are in a position to address these challenges by applying the environmental rule of law — guided by principles of equity, justice, and inclusion.

To discuss the role of judges in interpreting and developing the environmental rule of law in a global context, the Institute co-organized the second global symposium on The Judiciary and the Environmental Rule of Law: Adjudicating Our Future.

The event was organized in partnership with the Global Judicial Institute on the Environment, IUCN’s World Commission on Environmental Law, the general secretariat of the Organization of American States, and UN Environment. The event took place in Honolulu and was co-hosted by the Hawaii State Judiciary and Environmental Law Program of the William S. Richardson School of Law.

The two-day event brought together members of the U.S. Conference of Chief Justices and distinguished judges from the United States and abroad, jurists from OAS and UN member states, leading members of GJIE and WCEL, as well as experts from around the globe.

In addition to keynotes by high-level members of the domestic and international judicial community and international organizations, the symposium hosted three interactive sessions highlighting different environmental stresses and issues.

ELI President Scott Fulton, former President John Cruden, Associate Vice President of Research and Policy Sandra Thiam, Visiting Scholar Paul Hanle, and Distinguished Judicial Scholar Meredith Wright were present as speakers and participants. Fulton gave remarks during the first opening keynote address.

The first session focused on ecosystem changes and threats for biodiversity, oceans, and water resources. The event discussed tools for judges and the role of judiciaries in ecosystem restoration and protection. The second panel featured recent developments in the Americas to consolidate supporting principles of the environmental rule of law. The third session, titled “Judicial Remedies for Climate Vulnerability,” discussed climate-related jurisprudence, such as implications of security and the rights of future generations.

The final session consisted of a high-level roundtable, where conference participants discussed the role of the judiciary in advancing the environmental rule of law. The key interests from the discussion were presented the following day at the U.S. Conference of Chief Justices Mid-Year meeting for future consideration to guide deliberative processes.

ELI’s original CLE course still keeps professionals up to date

In February, ELI and the American Law Institute Continuing Legal Education hosted the Environmental Law Conference: 50th Year Anniversary Presentation, a signature CLE course on environmental law. The two-day event was hosted in Washington, DC, attended by private and governmental attorneys in environmental law, as well as environmental consultants, in-house attorneys, and public interest attorneys.

The event was organized by Pamela R. Esterman and Daniel Riesel of ELI member firm Sive, Paget & Riesel P.C., with support from Bergeson & Campbell, P.C., and the Environmental, Natural Resources, & Energy Law section of Lewis & Clark Law School.

The course originated 50 years ago as the first national CLE event focused on helping lawyers understand the key current environmental law issues necessary to advance environmental protection. Such training was not widely included in the traditional law school curriculum at the time. Since then, environmental law has proliferated and the course has established itself as a core CLE event to keep lawyers updated with the latest developments in environmental law.

The course featured subjects such as litigation on the Comprehensive Environmental Response, Compensation, and Liability Act and regulatory developments, emerging groundwater contaminants such as PFAS, legislative developments relating to climate change, a Supreme Court update, water quality and wetlands, as well as the Endangered Species Act rule changes.

Peter Wright, assistant administrator at EPA’s Office of Land and Environmental Management, gave the keynote address at the seminar

ELI staff, board members, and Leadership Council members served as distinguished faculty in the course.

ELI President Scott Fulton, former ELI President John Cruden, and ELI board member Brenda Mallory led a session on the past and future of environmental law.

Board member Vickie Patton shared her expertise on regulatory updates regarding the Clean Air Act, and Hilary Tompkins presented on the topic of recent legislative action for the Endangered Species Act.

ELI Leadership Council member Lynn Bergeson spoke about toxic substances and emerging contaminants, and Jeffrey Gracer co-led a section on climate change litigation developments and updates.

Field Notes: Institute hosts two training workshops in China

In mid-November, ELI and the Policy Research Center for Environment and Economy hosted two training workshops on permitting systems for enforcement officials from China’s Ministry of Ecology and Environment and the provincial environmental agencies in Hebei, Jiangsu, Guangdong, and several other provinces. The workshops, held in Beijing and Guangzhou, focused on best practices in designing and enforcement aspects of permitting systems in China, the United States, and Europe.

Chinese officials, former and current EPA officials, and European academics served as faculty in this workshop. U.S. experts included Keith Cohon, adjunct professor at Washington University Law School and former assistant counsel in EPA Region 10, and Karen Goldberg, assistant counsel in Region 9.

They provided instruction to Chinese participants on the best practices in permit compliance monitoring and enforcement policy, as well as advancing compliance culture in the regulated community and achieving enforcement through public interest litigation. The curriculum also delved into the factors that a regulatory agency should consider in designing permits to enable effective enforcement and compliance. The workshops were in part supported by the U.S. Embassy in China.

ELI Ocean Program Director Xiao Recio-Blanco attended the Our Ocean 2019 conference in Oslo, Norway, in late October. At the conference, Recio-Blanco announced that the Institute, with support from the Oak Foundation and in partnership with Parliamentarians for Global Action, will develop publicly available, model legal language that governments around the world can use to promote a sustainable fisheries sector. The project will produce a Law and Governance Toolkit for Sustainable Small-Scale Fisheries for the use of governments to implement institutional, governance, and legal approaches that are supported by both small-scale fishery policy research and regulatory practice.

In December, Research Associate Sierra Killian represented the Environmental Law Institute and ELI’s Ocean Program at the UN Climate Change Conference.

Killian met with representatives from domestic and international groups, growing ELI’s network and participating in conversations with organizations looking to expand legal implementation of international climate agreements and integrate ocean conservation into climate mitigation and adaptation.

ELI’s Gulf restoration team traveled to coastal Mississippi in October to meet with local partners and confer with community members in Gulfport and Biloxi on efforts and concerns in restoring the region after the Deepwater Horizon oil spill. The team also attended the Mississippi Restoration Summit in November, where they learned from state representatives and the Mississippi Trustee Implementation Group about the state’s upcoming priorities and new projects for 2019-20.

ELI’s People Places Planet Podcast is conducting a series of conversations with former EPA general counsels, giving listeners an inside look into OGC’s input into agency rules and guidance documents. People Places Planet Podcast has conducted three interviews, led by Kevin Minoli, currently a partner at Alston & Bird, who had 18 years of experience working in OGC. Minoli first interviewed former general counsel Avi Garbow, who is the longest-serving OGC chief in EPA history, followed by ELI’s Scott Fulton and GE’s Roger Martella.

CEQ Chair and Senator Keynote ELI-NEPA Anniversary Event.

ELI Report
Anna Beeman - Environmental Law Institute
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Award Dinner | In celebrating ELI’s 50th anniversary, the annual convocation honors a panoply of environmental professionals


The Environmental Law Institute 2019 Award Dinner was one of the biggest in the history of the Institute, with over 750 environmental professionals across all different sectors in attendance. The dinner, held each year, honors individuals and organizations for demonstrating outstanding commitment to environmental protection. It also continues to serve as an opportunity for environmental professionals to forge new bonds of cooperation, while supporting the agenda-setting research, education, and publications of the Institute.

ELI presented the 2019 Environmental Achievement Award to Yvon Chouinard, founder of Patagonia, and Rose Marcario, Patagonia’s president and CEO, in recognition of their leadership and environmental stewardship.

In his opening remarks, President Scott Fulton congratulated the two awardees, noting that, “through their leadership we see an example of business engagement relating to the environment that is extraordinary and multifaceted. They have achieved greening of their own operations and their supply chain, extending the commitment of company resources for environmental causes, and even deployment of legal tools to give more voice and reinforcement to their environmental ideals — while having the most prosperous years in the company’s history.”

Avi Garbow, staff environmental advocate at Patagonia, and a former EPA general counsel, received the award on behalf of Chouinard and Marcario, who were unable to attend the event in person.

Garbow noted that Chouinard’s climbing equipment company had become the largest in the United States when, in its 1972 catalogue, he stated: “No longer can it be seen that the earth’s resources are limitless, that there are ranges of unlimited peace endlessly beyond the horizon. Mountains are finite, and despite their massive appearance, they are fragile.”

While Chouinard grew the business into Patagonia in the 1970s and 1980s by adding clothing to the line, he became increasingly aware of not only the opportunity but also the responsibility to improve the places and conditions that inspired him to found the company. By 1998, the company was giving to grassroots campaigns across the country that aimed to restore rivers, preserve public lands, and clean the air. Garbow noted that since 2002 when Mr. Chouinard founded 1% for the Planet, Patagonia as well as its members and partners have collectively given over $220 million to grassroots environmental causes.

In 2008, Marcario joined as CFO and became CEO in 2014, “immediately embracing the company’s environmental ideals.” Under Chouinard and Marcario’s leadership, Patagonia has created a platform for customers to connect with local grassroots organizations, invested in a company program that repairs customer garments, and set goals for the entire supply chain to be 100% carbon neutral by 2025.

“We are in the fight of our lives to protect our home planet, and we will use every part of our business to set an example of what it means to be a responsible business,” said Marcario in a thank you video to ELI and its supporters, shown at the event.

In celebration of the Institute’s 50th anniversary, ELI also presented Founders Awards to Craig Mathews, James Moorman, and Tom Alder, who helped create the Institute 50 years ago. Moorman accepted the award on the three recipients’ behalf, reflecting on their work in developing the Environmental Law Reporter, the primary idea that led to creation of the Institute.

In addition, ELI awarded an Environmental Futures Award to former ELIers Nick Bryner, Seema Kakade, and Jordan Diamond, a group with varying professional environmental backgrounds, recognized as the next generation of leaders striving to address the environmental challenges of tomorrow.

Kakade, who accepted the award on behalf of the three recipients, noted that “this diversity of work in my view is truly indicative of what has become the field of environmental law today.”


Corporate Forum takes on businesses’ renewable energy goals

Each year in the afternoon of the annual award dinner, ELI holds a high-profile Corporate Forum. This year’s topic was Renewable Energy: Corporate Obstacles & Opportunities. Sofia O’Connor, ELI staff attorney and co-author of “Corporate Statements About the Use of Renewable Energy,” moderated the session.

Wayne Balta, vice president of corporate environmental affairs and product safety at IBM, began the talk by describing his company’s ambitious energy saving and renewable energy goals. However, Balta noted a lack of transparency in renewable energy certificates and maintained that some of the greatest regulatory barriers for companies such as IBM to transition to renewables include the existence of regulated versus unregulated markets.

Beth Deane, chief counsel of project development at FirstSolar, emphasized the importance of lifecycle analysis in manufacturing renewable energy products.

As the largest U.S. panel manufacturer, FirstSolar recognizes the importance of addressing impacts from their manufacturing operations. She explained that grid congestion is one of the current obstacles facing the renewables industry, as well as new regulatory challenges that vary across states.

Panelist Janice Dean, deputy counsel of NYSERDA, described how the state agency has been working to mitigate risks associated with renewable energy projects. Echoing Deane, she mentioned that the New York agency has worked to address all stages of development of these projects to make the transition to renewables and implementation of policies smoother.

On the regulatory front, Balta and Dean agreed that variability has presented some challenges, and in response, NYSERDA hopes to continue to collaborate with corporations to make the regulatory landscape on renewable energy work for everyone.


Institute holds first international conference on peacebuilding

Environmental stresses and related conflicts have created global humanitarian crises for decades. For 50 years now, people across the world have been developing different ways of analyzing and finding solutions at the intersection of violent conflict and environmental degradation through the theory and practice of environmental peacebuilding. Until 2019, there had been no global forum dedicated to professionals working in environmental peacebuilding to share their experiences and build a global network.

In late October, the Environmental Peacebuilding Association, of which ELI is the secretariat, held the First International Conference on Environmental Peacebuilding. The conference took place at the University of California, Irvine, and featured speakers from 38 countries who were joined by 240 participants from more than 40 countries. The conference served as a space for bringing together stories from practitioners, researchers, communities, and decisionmakers across viewpoints of different generations, nations, and experiences.

The conference highlighted two special themes: technology and innovation in environmental peacebuilding, and environmental peacebuilding in Colombia. In addition to the 40 panels and roundtables and eight training sessions, the conference included a concert featuring Perla Batalla, as well as a professional photographic exhibition and poster session, adding audio and visual elements for attendees.

The three-day event was a significant step toward untangling the current challenges of the environmental peacebuilding field, such as how to build the evidence base for environmental peacebuilding, and subsequently how to refine frameworks to link together different threads of environmental peacebuilding.

The conference encouraged participants to consider how the field could work to develop better tools for monitoring, evaluation, and learning, as well as how technology could be integrated in efforts to prevent, mitigate, and respond to incidents of environmental degradation and violent conflict.

The conference fostered new networks and presented opportunities for the field of environmental peacebuilding to grow worldwide.


ELI Award How Patagonia acknowledged its impacts and forged a leadership role in dedicating the firm to saving the earth

On behalf of Yvon Chouinard, our founder, and Rose Marcario, our CEO, I want to extend their deep gratitude to ELI and all of its supporters gathered here for the 2019 award for environmental achievement and to celebrate ELI’s 50th anniversary. In doing so, I hope to give you a sense of Yvon and Rose personally and their pursuit of environmental responsibility and achievement professionally through the lens of their business.

The story of Patagonia begins in the early 1960s in Southern California, where Yvon, who was a surfer, a climber, and indeed a falconer fresh off service in the Army, put out his first one-page catalog of climbing hardware that he forged in an old Lockheed warehouse in Burbank. The interesting thing for me is at the bottom of the catalog — or I should say the piece of paper — was a disclaimer that said, “Don’t expect fast delivery between the months of May to November.”

He soon moved his small operation, called the Chouinard Equipment Company, a bit up north to Patagonia, where we are currently based. In fact, he relocated to what we now fondly call the old tin shed. It’s a place that many of us still gather. By 1970, Yvon’s company had become the largest supplier of climbing hardware in the United States.

At that time, one of the mainstay pieces of equipment for climbing was the piton, a wedge that climbers jam into cracks to use them as support. Yvon made some of the best in the world.

But it soon became evident to Yvon and to other climbers coming back from Yosemite and other fabled places that these pitons were scarring the face of the very cliffs and mountains that Yvon and others were inspired by. So there emerged what was called a Clean Climbing Movement, and they developed a chock that you could simply put into the crack by hand rather than hammering in.

In 1972, right on the cusp of this movement, the Chouinard Equipment Company put out what’s now a quite famous catalog. At the beginning of their listings was an essay by Yvon and his partner, Tom Frost. It began this way, “No longer can we assume that the earth’s resources are limitless, that there are ranges of unlimited peaks endlessly beyond the horizon. Mountains are finite and despite their massive appearance, they are fragile.”

That is a prescient statement and a metaphor of so much that we find dear when it comes to the environment. And Yvon ended that note in his catalog by saying, “Remember, the rock, the other climber.”

Soon afterwards, Yvon began to add clothing to his line so that he and his friends and others could better get out and explore wild places. His idea at the time was to make this firm, newly named Patagonia, a clean company, certainly in comparison to the grit and the fire in the forge when he was putting out the climbing equipment. But, of course, anybody knows that few things come easily in business and certainly very few companies, if any, are clean. So he soon had to confront the impacts of his activities. Patagonia began to do just that. Not just Yvon as an individual or as people in the company but as the company itself — emphasizing the responsibility, the opportunity, to improve the wild environments that were really the impetus for the founding of the company in the first place.

In 1998, Patagonia put out another catalog — actually a pamphlet. It was titled “Louder than Words.” There were no products, just a compilation of environmental essays. The purpose was to answer the question of what a rag seller is doing on the environment soapbox. It began thusly, “Inspiration needs noise. It needs leadership, and to inspire solutions to the environmental crisis you have to go public with your own.”

Patagonia, like many companies, gets its share of fan mail. Nowadays, most of that sort of fan mail comes by way of social media. We have plenty of supporters. But Patagonia back then and certainly today has critics, oftentimes sadly directed at our environmental advocacy and our efforts.

We published one of these critiques. It was a note from a gentleman in Grants Pass, Oregon, who was angered at our support for a forest protection group in his area. “Stay out and stay home, mind your own business,” he wrote. Patagonia published that on the back of its 1998 catalog.

That was when Yvon and Patagonia were starting to give to environmental grassroots organizations. The very reason for the company was to have a healthy environment and to be able to explore public lands and be inspired by wild landscapes. So what began early as efforts to protect surf breaks or steelhead in the Ventura River soon began to be larger campaigns to help all our public lands, restore our rivers, and clean our air. Today, I would say on a scale only matched by the scope of the global crisis, Patagonia is working very hard to address climate change.

With each of these campaigns it was always Yvon’s sense that a group of passionate folks in a local community had the best opportunity to make the largest impact. So in 2002, along with a co-founder who had an angler shop in Wyoming, he founded 1% Percent for the Planet, based on the not-so-radical idea that business impacts the planet. It was his way of having an Earth Tax, to give back. I’m happy to say that since that time, the members and the partners in 1% for the Planet have collectively given over $220 million to support grassroots environmental organizations.

In 2008, Rose Marcario joined Patagonia as its chief financial officer. She immediately embraced our environmental ideals and became CEO of the company six year later. Yvon has said that she is the best leader his company has had.

Both Yvon and Rose know that, given the way things are in our environment, that we at Patagonia really needed to step up our game. So, about a year ago they changed the mission statement of the business.

This is not simply switching to a new poster that you put in your cafeteria. What the new mission statement did was to declare, We are in business to save the home planet. That message resonated with every single individual who works at Patagonia. So true to our mission, we’re quite partisan, but not in the D.C. and political sense — partisan when it comes to the planet.

We always look for ways to be more effective. We created an online platform called Patagonia Action Works, which acts like a dating service that introduces Patagonia customers to opportunities with local environmental grassroots groups. We gave away all the money that Patagonia got on Black Friday to local organizations. We invested in repairs to customers’ garments through our Worn Wear Program, because we know that the longer you can use our product and not buy a new one is actually better for the environment.

We’ve set for ourselves an aggressive goal of being 100 percent carbon neutral throughout the business by 2025. When I say throughout the business, that is throughout our entire supply chain. We formed the Regenerative Organic Alliance with Dr. Bronner’s and the Rodale Institute to find a new way of farming, something that regenerates our soils — because we know that is needed not only to sustain our harvest, to nourish our families, but also to fight our climate crisis.

As an aside, my hope is that all of you were able to sample some of the products of our food company and our brewery at the reception. Our beer is made with Kernza, which is a neat perennial grain whose roots grow 10 feet in the ground. It’s got its own cool environmental story.

Finally, we’ve sued to protect our public lands. We are going to continue to use the very laws that are the foundation for ELI to pursue a healthy planet for all of us. And all this activity by the company was during what was also its most prosperous years in its history. It can be done.

Who are we today? Yvon has said we’re actually an experiment, one that exists to present a new style of responsible business. We don’t kid ourselves. We don’t do everything that a responsible company can do. Frankly, we’re not really aware of anybody that does, but that doesn’t mean that we’re not committed to challenging ourselves to constant improvement.

Improvement when it comes to our customers, our communities, our employees and for the planet because Patagonia actually views all of them as our stakeholders, importantly the environment as well. That’s the only paradigm that we think will work for business going forward. It’s why Patagonia was the first company in California to register as a benefit corporation. Yvon has always said that the cure for depression is action, so with their leadership we will continue to push ourselves.

I want to in closing thank ELI and all of its supporters for conferring this wonderful honor on Rose and Yvon. I want to thank my colleagues at Patagonia here and elsewhere for your steadfast dedication to our mission. I also want to thank everybody here for the work that you do. Whatever you have done — in your law firms, in your companies, in your agencies and organizations — to help restore and preserve the planet, that’s what I want to offer my thanks for.

Patagonia's Founder and CEO Receive ELI Award.

Wetlands Efforts Meld Science and the Law
Rebecca Kihslinger - Environmental Law Institute
Environmental Law Institute
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Rebecca Kihslinger

Wetlands conservation has been a signature program for ELI since its very first decade. In 1977, with support from the Fish & Wildlife Service, ELI convened the first National Wetland Symposium, bringing together 700 wetlands scientists, managers, lawyers, and conservationists. And for nearly 40 years following until the Institute regretfully pulled the plug for financial reasons, ELI’s respected National Wetlands Newsletter served as the touchstone publication for the field, with influential and intensely practical articles on wetlands science, law, management, and governance.

In addition to NWN, ELI wetland books and reports have shaped the field in profound ways. Jon Kusler’s Our National Wetland Heritage: A Protection Guidebook, released in 1983, was one of ELI’s most-purchased books, and was succeeded by a well-regarded second edition in 1996 (with NWN Editor Teresa Opheim doing the update).

ELI’s first-ever study of all the nation’s wetland mitigation banks in 1993 became its most widely disseminated research report; it has led to a continuing series of influential studies on wetland banking and fee-based mitigation programs over the following 25 years.

The Institute’s work during this period included creation of databases and inventories of these programs, led by Science Policy Analyst Jessica Wilkinson. ELI’s pioneering work on compensatory mitigation influenced findings by a National Academy of Sciences panel that led to the 2008 Corps-EPA rule putting compensatory mechanisms on a firm scientific and legal footing.

Much of ELI’s wetlands work has had a state and local focus, including studies of the likely impacts on state programs of changes in definitions of Waters of the United States under the federal Clean Water Act, which has come to be relied on by all parties.

ELI’s numerous wetland and stream mitigation studies and training courses continue under the leadership of Senior Science and Policy Analyst Rebecca Kihslinger, and the Institute continues to collaborate with states and academic organizations on restoration priority setting and the role of wetlands in climate adaptation, often with foundation support.

“As climate change and regulatory uncertainty threaten the protection of vital habitats,” notes Kihslinger, “the timely research and comprehensive training programs offered by ELI promote policies and innovative approaches that preserve wetlands function and maintain crucial ecosystem services for all communities.”

In 1989, ELI launched a program to recognize excellence in wetlands conservation. The National Wetlands Awards, now in their 30th year, recognize individual achievement in landowner stewardship, science, governmental innovation, education, and other categories. Presented with modest support from federal wetlands agencies, and held on Capitol Hill, this event celebrates the contributions of conservationists, teachers, and others. Keynote speakers have included the late Senator John McCain of Arizona and New Mexico Senator Tom Udall.

ELI’s other work on water resources in the United States has focused on policy and regulatory gaps. In the early 1980s, Institute staff led by Tim Henderson produced work on state groundwater protection laws. In the 1990s and 2000s, ELI prepared comprehensive inventories of all state nonpoint source protection laws. In these same years the Institute worked on green infrastructure and ways to address older sewer systems.

More recently, ELI has aimed at connecting water quantity, water conservation, and water quality, including an influential partnership with the Alliance for Water Efficiency and River Network, known as Net Blue. Adam Schempp has directed a long-standing series of training courses and workshops for state regulators dealing with impaired waters, and related courses on data management and monitoring, with support from EPA. These intensive courses involve state-to-state peer learning and networking.

A Convening Forum for All the Stakeholders
Erik Meyers - The Conservation Fund
The Conservation Fund
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Erik Meyers

The challenges of a complex, interrelated globe demand the collective energy, insight, and innovation that only a broadly based group of practitioners can bring. After 50 years, the Institute’s continued vitality is reflected in the spirit of those whom it regularly convenes to work out real-world solutions to humanity’s pressing environmental problems.

The advent of the magazine you are reading helped to widen the Institute’s constituency to a broader array of professionals, including not just the environmental bar but also agency policymakers, industry engineers, business and NGO government affairs specialists, academics, and citizen advocates. The Environmental Forum quickly became the source for discovering what the field was debating, who was making change, and what was happening on the ground — as well as for insightful policy proposals to consider going forward.

ELI simultaneously assumed a role of convening these constituencies, by creating a real-world interplay building on the Forum’s ability to foster dialogue. Informal brown-bag discussions soon morphed into regular seminars and policy panels.

For almost four decades now, ELI Associates Seminars, as they came to be called, have drawn together the field’s leading lights and practitioners in the trenches for lunch-hour and early-evening sessions. Professionals gather to network while debating the best ways to improve law, policy, and corporate management.

The next step was for ELI to engage with the private sector more deliberately. Business leaders badly need a venue for meeting not just with industry peers but a full spectrum of environmental professionals across sectoral lines, folks interested in effective outcomes and equitable process, not policy purism.

ELI’s Corporate Associates Program, the first of the sector-focused networks formed by the Institute, quickly matured programmatically. Under the Institute’s auspices, the program convened peer-to-peer discussions of new environmental, health, and safety approaches, including sustainability innovations, and introduced state and federal governmental leaders, academics, and public interest advocates to innovators from the business world.

At the same time, law firms were creating specialized environmental practice units to serve local, national, and even global clients. ELI was a natural home for attorneys in private practice, and the ELI Professional Associates Program was the result. Educational events with firms expanded the Institute’s geographic reach, and enabled ELI to be present in locations around the country and at important international meetings.

Environmental professionals in citizens organizations grew up relying on ELI’s legal resources, and were also interested in professional development and opportunities to work with other stakeholders, soon forming the ELI Public Interest Associates Program.

Government attorneys and managers form the fourth leg of the professional platform for dialogue and networking that ELI has built, yet funding realities and government ethics mean that their participation is as individuals, not through an institutional affiliation.

The ELI Award is integral to forming the network of environmental professionals envisioned by the Institute. Created to recognize the field’s heroes, the annual prize reminds practitioners, no matter their sector, why they were drawn to the field in the first place — as well as to highlight the many places where leadership is still needed.

Honoring EPA administrators and members of Congress, insightful jurists, prominent businessmen and women, leading law firm attorneys and academic thinkers, and environmental advocates, all leaders of the global sustainability movement, the ELI Award signifies the highest achievement in the protection of human health and natural resources.

As environmental law evolves from a focus on pollution control and resource conservation to an ever-widening lens encompassing sustainability, environmental justice, biodiversity protection, and climate stability, the Associates Programs will continue to evolve in response.

Educating Judges on the Basics and Nuances
John Pendergrass - Environmental Law Institute
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In accepting the 1989 ELI Award, James L. Oakes, chief judge of the Second Circuit, challenged the Institute to close a gap in jurists’ knowledge of the basics and the nuances of environmental law. ELI responded with a session the following spring at the Federal Judicial Center’s “Workshop for Judges of the First and Third Circuits” in White Plains. Course faculty provided “an exploration and review of key areas of interest to federal judges in eastern states, with general overview and reference to legislative and interpretive dilemmas as well as noteworthy case law.”

Over the next three years, ELI’s Barry Breen then gave presentations on various aspects of environmental law to judges in eight appeals court circuits, and he then did the same for bankruptcy judges from all of the circuits.

At the same time, ELI developed programs for state judges. Most critical to their model is to consult in advance with those judges to determine their needs, preferred learning methods, and desired speakers. ELI has also found it important to consult attorneys in the jurisdiction to learn about cases on the horizon. This research informs ELI’s agendas, faculties, and materials for the programs. With the sponsorship of the Flaschner Judicial Institute, ELI in 1991 held its first program for state court judges for judges from the six New England states.

Collaborations with Flaschner and the FJC made clear the importance of working with established organizations that focus on education for judges, a practice the Institute has followed since.

The success of the program created momentum, giving rise over the next few years to ELI workshops for judges from New Jersey, Ohio, Virginia, Florida, and for another regional program that covered Arizona, Colorado, New Mexico, Texas, and Utah. The latter resulted in an ELI handbook for state judicial educators to use in developing training for jurists, which was distributed by the State Judicial Institute to all 50 states. The subject matter varied by jurisdiction, but most covered hazardous waste cleanup, including the science, as that issue was heavily litigated in the 1990s.

During the early 1990s, some of ELI’s international partners identified similar needs and asked the institute to expand the Judicial Education Program to include other countries. In response, ELI quickly adapted the methodology to add research into the legal and judicial systems of the different jurisdictions and also added substantive areas.

The first such program was for Russian judges and other officials, held in Washington in 1994. The following year was busy, with educational programs in Honduras, Ukraine, Brazil, and Florida. In addition to covering environmental law and science, the Brazilian judges asked ELI to cover environmental economics, which became another standard topic. Eventually, these courses have come to incorporate the latest advances in legal, scientific, public health, and economic thought, and allow interactive analysis by participants and faculty.

In 2019, ELI’s Judicial Education Program turned its focus back to the United States and to again working with the Federal Judicial Center. Paul Hanle, with extensive experience in science communication, and David van Hoogstraten, who had just left his position as director of federal environmental regulatory affairs at the energy company BP America, came to ELI with the idea of developing a training program for judges on the basics of climate science.

Their idea was a perfect fit with ELI’s existing program and they were able to secure startup funding for the Climate Judiciary Project. The pilot program was held in June at Columbia in partnership with the FJC and the American Association for the Advancement of Science, both of which share ELI’s sense of the need for judicial education in this area and the goal of providing such programs impartially and without ideological tilt.

Since its first program in 1990, ELI has developed and presented workshops on critical topics in the environmental field for more than 2,500 judges from 28 countries and, through participation in international and regional events, has reached far more jurists than those statistics would suggest.

Promoting Democracy, Sustainability Globally
Jessica Troell - Environmental Law Institute
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Jessica Troell

The Institute’s international programs began in the late 1980s as a response to a growing need by national governments across the Americas, Central and Eastern Europe, and the Middle East for assistance in drafting environmental laws and regulations and building government and civil society capacity to implement and enforce those laws.

In many of these countries environmental protection was becoming an entry point for more transparent, participatory, and accountable decisionmaking. Governments were willing to provide access to environmental information, even where broader transparency was lacking.

In Europe, countries emerging from communism were keen to address increasingly dire environmental problems in a democratic manner. At the same time, many countries throughout Latin America were transitioning from authoritarian governments, fostering stronger civil society engagement and adopting more open and transparency environmental decisionmaking.

At first, the Institute’s international work was focused on responding to the needs of our partners, including governments, civil society organizations, and educational institutions. ELI helped newly democratic countries like Hungary and Poland and their local NGOs draft environmental laws, establish regulatory bodies, and build professional and institutional capacity. The Institute worked with local organizations to develop environmental regimes and with national governments to develop systems governing access to genetic resources and sharing the associated benefits.

Over the ensuing three decades, ELI developed programs in India, Africa, and China and has since worked with in-country partners and international organizations on every inhabited continent.

In the Middle East, ELI helped Palestine draft its framework environmental law and supported regulatory reforms and improved capacity in the water sector of Jordan. ELI pioneered developments in climate adaptation law in Kazakhstan. The Institute has worked in post-conflict Liberia to reform its forestry and environmental sectors to aid in the process of recovery and help set the country on the path of sustainable development.

Senior Attorney Jessica Troell summarizes where the Institute’s International Program is today:

“While ELI continues to have active regional programs in Africa, China, and the Americas, our efforts are now also strategically oriented along thematic lines. We are engaging with partners to address the most pressing environmental governance issues around the world. These include supporting climate resilience, preserving freshwater and marine resources at national and transboundary levels, protecting the water rights of indigenous and local communities, promoting environmental peacebuilding, and countering growing threats to biodiversity.”

As part of this work, the Institute has trained thousands of judges across 28 countries, working to understand their legal systems and incorporate the latest thinking among jurists from all over the globe.

The Institute also plays an important role in fostering exchange and learning globally among professionals not only in government but also in businesses, NGOs, law firms, and universities. Over the decades, ELI professionals and volunteers have worked in more than 90 countries, and trained more than 68,000 individuals from more than 170 countries. The Institute’s international activities now account for half of the organization’s programs.

After years of building local laws, institutions, and capacity, international attention is shifting to environmental rule of law: ensuring that the pollution and resource statutes and regulations have practical force in a country’s legal system.

There are many dimensions to this new concept for lawyers to mull, with social, cultural, and economic aspects bringing in other professionals. As an institutional expert at synthesis and advanced thinking, ELI is well positioned to lead in this next phase of protecting our planet’s ecosystem.

Center Brings Support to the Frontline Troops
Linda Breggin - Environmental Law Institute
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Linda Breggin

Environmental programs deployed below the national level, a concept known as environmental federalism, have been a key focus of ELI’s work since the Institute was founded. What today is called the Center for State, Tribal, and Local Environmental Programs, however, was not formally established until 1986, with a grant from the Andrew W. Mellon Foundation. Over the years, the State Center has served as an umbrella for the myriad ELI programs and projects that involve subnational governments, both in the United States and overseas.

ELI’s special focus on state, tribal, and local environmental programs reflects the essential role they play in implementing and enforcing federal environmental laws such as the Clean Air Act and Clean Water Act, in addition to their own laws, regulations, and policies. Key State Center objectives include fostering stronger state, tribal, and local environmental programs and supporting their role in environmental management and enforcement — through research, education, convenings, consultations, and publications.

For example, the State Center’s research work includes numerous ELI signature “50-state studies” on topics that include brownfields, state laws on hazardous waste cleanup, and indoor air quality, as well as a multitude of reports and briefs over the last half century. In recent years, ELI’s research has examined cutting-edge topics such as green infrastructure, environmental hazards at child care facilities, and floodplain acquisition and buyouts.

ELI also works on-the-ground at the local level helping cities to develop policies, ordinances, and other approaches to addressing environmental challenges. Since 2015, ELI has served as the project director for the Natural Resources Defense Council’s Nashville Food Waste Initiative — a pilot project that works with the city and a wide range of stakeholders to develop and implement a holistic food-waste strategy, one that serves as a model for other cities. Local projects include prevention of waste, recovery of surplus food, and recycling of scraps.

Farther afield, a promising project will examine the potential for Inuits living in Alaska and the Inuvialuit Settlement Region of Canada to manage resources important for food security.

To build the capacity of state and local officials to administer programs, the State Center’s recent training efforts also have covered a wide range of topics — from wetlands in-lieu fee mitigation to Clean Water Act Total Maximum Daily Load programs. Earlier programs covered leaking storage tank rules, solid and hazardous waste enforcement, negotiating skills for Superfund settlements, enforcement of pretreatment requirements by publicly owned wastewater works, and combining cleanup orders under Superfund and the Resource Conservation and Recovery Act.

ELI’s publications have provided resources for stakeholders, including The Environmental Forum’s “Around the States” column written by the director of the State Center for over 25 years. And topping off its decades-long efforts to support the effective functioning of cooperative federalism, ELI convened the Macbeth Dialogues and published the corresponding 2018 report on “Cooperative Federalism in the Modern Era.”

According to John Pendergrass, who directed the State Center for more than twenty years starting in 1990, ELI has filled a critical niche over the decades with its research and convenings that focus on cooperative federalism — the defining feature of our environmental protection system. He anticipates that “ELI will continue to play this vital role — studying while supporting and fostering dialogue on the respective roles and responsibilities of federal, state, tribal, and local governments.”

The work of ELI’s State Center is particularly important today. In an era of congressional gridlock, regulatory rollbacks, and reduced federal enforcement, state, tribal, and local governments have a critical gap-filling role to play in environmental protection. Today, many states are taking the lead on environmental problems, and local governments are often on the frontlines of dealing with emerging environmental threats like climate change.

Institute Aims for Sea Change in Degradation
Kathryn Mengerink - Waitt Institute
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Kathryn Mengerink

In 2005, ELI President Leslie Carothers tasked staff professionals with addressing a concern she had about an environmental problem that was receiving little attention despite its severity and global impact — the degradation of the planet’s ocean, which covers two thirds of the globe and is in deep distress. Depleted fish stocks, massive decline in coral reefs, loss of coastal habitats, rising seas, increasing temperatures, and ocean acidification are some of the most pressing problems that are only growing in severity.

In response to these myriad issues, the Institute adopted a wide-angle approach. Staff lawyers and scientists arrived at Marine Spatial Planning as a key tool to achieve ecosystem-based management and address the ocean stresses caused by humanity. More than 60 countries around the world now engage in MSP, with more coming on line every year.

The ELI Ocean Program became a leader in the law and governance of MSP, working on efforts in the United States as well as working with what are known as Small Island Developing States. Today, with support from the Waitt Institute and National Geographic’s Pristine Seas Program, the ELI Ocean Program continues to focus on supporting the analysis of legal frameworks for MSP and the design of laws to operationalize plans.

Significant to the Ocean Program portfolio is the focus on restoration of the Gulf of Mexico as a result of one of history’s largest global environmental disasters, the Deepwater Horizon oil spill. In partnership with the Walton Family Foundation, the Ocean Program has built and managed a major project to help gulf communities engage in the numerous public processes that aim to restore the body of water and the people who depend on it.

This work has led to innovation in communicating law and policy to the public, tracking and sharing information, and working effectively with a large group of actors ranging from indigenous peoples to fishers to scientists to agency decisionmakers. Only an organization with the expertise and networking and convening experience of ELI could work effectively in this legal space.

The Institute has had the invaluable opportunity to undertake a wide range of other projects in support of the planet’s ocean environment.

For instance, ELI scientists and attorneys have supported the role and rights of Alaska Native communities in managing their ocean resources. The Institute has evaluated U.S. fisheries’ compliance and enforcement systems and examined legal frameworks for deep seabed mining with a focus on addressing significant impacts. ELI has explored the potential to use environmental DNA in decisionmaking. The Institute has supported the National Oceanic and Atmospheric Administration in the design of social impact assessments for U.S. fisheries management. And ELI has designed legal guidance on managing marine debris.

Why “Ocean” and not “Oceans”? While we have many ocean basins, with romantic names and a deep history, the planetary ocean is one interconnected earth system that requires legal and governance systems that account for these connections. To that end, one of our initial projects focused on the design of governance systems for marine ecosystem-based management — a sprawling concept that calls for management of the ecosystem as a whole rather than concentrating on key species or habitats.

The globe-girdling ocean is the tie that binds these individual projects together. But more than that, it is the Ocean Program’s participants, staff, and invaluable partners who share a vision of supporting communities and the marine environment, innovating in project design, and working as a cohesive team to advance ocean conservation using the laws on the books and implementing new measures that may be necessary.

When Laws Were Attacked, ELI Stepped Up
Jay Austin - Environmental Law Institute
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Jay Austin

The Institute’s dramatically named Endangered Environmental Laws Program was very much a product of the political, policy, and regulatory climate of the early 2000s — a response to the Rehnquist Court’s “new federalism” decisions and the George W. Bush administration’s regulatory rollbacks.

It also was as close as ELI in its first half-century has ever gotten to the advocacy world, though in our typically measured, thoroughly footnoted fashion. In the words of then President Leslie Carothers, “We may not be an advocacy organization, but we can advocate for the results of our research.”

By 2001, ELI attorneys realized that Supreme Court opinions in the SWANCC wetlands case and in non-environmental cases like U.S. v. Lopez and U.S. v. Morrison were chipping away at the Commerce Clause, the foundation of many federal statutes. ELI attorney Bradley Bobertz devised a detailed research and education agenda aimed at addressing this and other issues at the nexus of constitutional and environmental law, such as cooperative federalism, Article III standing, and Fifth Amendment takings.

With seed funding from the Packard and Hewlett foundations and input from a broad cross-section of advisors, ELI launched the EEL program in early 2002.

A key premise for the new program was that the Institute is uniquely qualified, through its decades of meticulous research and reputation for nonpartisan credibility, to defend the backbone of environmental law. Over the next six years, ELI honed that message and broke what for us was new ground, employing communications strategists, developing a program website, and publishing white papers, opinion pieces, and letters to the editor.

The Institute’s 2004 study of judges’ decisionmaking under the National Environmental Policy Act got prominent coverage in the Washington Post, and two program seminars were carried live on C-SPAN. To draw additional attention to the defense of environmental law, Carothers and I penned an op-ed for the Christian Science Monitor on the critical Supreme Court ruling in Massachusetts v. EPA, which required the agency to regulate greenhouse gas emissions.

Most importantly, in 2006 the Institute filed its first amicus brief in Rapanos v. United States, the follow-up case to SWANCC. The brief was cited in Justice Anthony Kennedy’s controlling opinion.

Rapanos squarely challenged the scope of “Waters of the United States,” the term of art governing Clean Water Act jurisdiction, and the scope of the Commerce Clause. “If ever there were a question on which ELI should intervene,” according to Carothers, “this was the right one.” On her recommendation and with board approval, the Institute entered the world of Supreme Court litigation. Staff worked long hours and received expert pro bono assistance from WilmerHale.

The resulting exposure from the brief did not come without controversy and raised eyebrows over the entire approach. A few law firm and corporate members questioned specific work that touched on their interests. Carothers staunchly defended the actions as appropriate, a corrective to what were novel, even radical, legal arguments being advanced in the courts. Policy disputes aside, things like the Commerce Clause’s applicability to environmental protection are bedrock, she told folks at the time. But following the 2008 election, there was (at least for a time) less need for this kind of action, funders lost interest, and the program wound down.

Viewed in hindsight, EEL in some ways seems quaint, dwelling on esoterica like the 11th Amendment that turned out not to have huge practical import. In other ways it seems ahead of its time, foreshadowing an even more turbulent era where constitutional arguments and the role of the courts are more crucial than ever.

At the very least, ELI’s experience serves as a reminder that some of the most important influences on environmental law come from beyond the Institute’s immediate sphere, and that ELI can help shape those too and in constructive ways.