Times Are Changing: Impressions from ALI-CLE Environmental Law 2020

by Jessica Sarnowski, Head of Content Marketing & Thought Leadership 27 Feb. 2020

This is an opinion piece on a recent environmental law conference in Washington, D.C. 

Reflections on the Past

The first time that I attended a major environmental law conference in Washington, D.C. I was still in school. If memory serves me correctly, the conference I’m thinking of is the same as the one that I attended just a few weeks ago, 13 years after graduating with my J.D. The American Law Institute holds an annual environmental law conference each year and they put forth a truly comprehensive overview of the current trends in environmental law. The conference covers every major United States environmental statute including the Clean Air Act, Clean Water Act, CERCLA, RCRA, NEPA…you name it. Lawyers come together from the non-profit sector, government, and private companies to review trends in regulations and court cases.

The organizers of this conference recruit the best of the best to speak and despite the political climate at the time, participants and panelists have a comradery that comes with being in this challenging field.

Environmental law is challenging for many reasons, but one primary factor is that it attempts to solve problems on a planetary scale.

We are left with a future vision of the world that is simultaneously predictable (the earth will warm) and uncertain (to what extent is to be determined).

 

Review of Select Sessions

As is the case for yearly environmental law conferences, there are some similarities in format and substance, but this year was acutely different. For example, in the session on hazardous substances and hazardous waste, we covered some basic principles of responsible parties and equitable allocation of liability between private actors. However, most interesting for me was the discussion of emerging contaminants (e.g. PFAS/PFOA). These contaminants are not historically covered by regulation, yet they are permeating many aspects of the environment and causing harm. This was an interesting twist to an otherwise predictable discussion of a core pillar of environmental law.

The RCRA overview, on the other hand, covered a few topics - such as the household waste exemption and questions about how to regulate over-application of manure - that are good to know about as a matter of background information, but don’t inspire much action from an analytical standpoint. There was a brief mention of how waste from retail operations is regulated – and this is of particular interest given Enhesa’s coverage of retail operations.

The Air session was characteristically in depth and complex (as most air lawyers will tell you is the norm). Panelists covered the Affordable Clean Energy Rule, the Mercury and Air Toxics Standard, the California Waiver for Mobile emissions from vehicles, the oil and gas pollution standards and the “once in, always in” conundrum that has arisen as of late. There was some interesting discussion about agency deference stemming from case law (e.g. Chevron/Auer/Kisor) and this was honestly kind of disturbing no matter where you stand on the political spectrum because agency deference is not specific to the Environmental Protection Agency. If deference is pulled or weakened for government agencies, then that will greatly impact interpretation of the regulations written by those agencies.

There is quite a lot happening right now with regard to chemicals regulation and this is no surprise given the recent overhaul of the Toxic Substances Control Act (TSCA). EPA must assess existing chemicals in commerce (approx. 40,000 chemicals) and must also assess new chemicals coming into the marketplace/commerce within a 90-day period. This is a tremendous undertaking. The panel on TSCA reminded me more of past conferences than any other panel over the course of the two days because it was focused on the work to be done. I sensed an urgency on the part of the panelists to carry out the statute’s intent. I also took note that PFAS was mentioned yet again in the context of chemical regulation – something to keep in mind as I follow this trend.

But, let’s turn now to the Climate Change discussion. Michael Gerrard, the professor from Columbia University, presented his view on climate change and what may happen to our planet. I remember this professor vividly from a past conference because, at that time, his message was clear – we are at a tipping point and if we don’t act now, we may go to a place of no return. This year, the message was different. It was more somber – more resigned to showing the science and what can happen – from a bad scenario to a dire one.

To me, this was a bit depressing, but to the first timers in the room – perhaps the law students who attended- one can only hope that this presentation filled them with the passion and the desire to stay in the field of environmental law. Despite the lack of federal action at this moment in history, the states are free to step up to the plate and many businesses are taking climate change seriously. So, although this year’s message was not what those of us in the field would like to hear, there is ample opportunity for progress in certain sectors. As long as other countries recognize the need for global action (which, of course, varies depending upon the country), there may be a light at the end of the tunnel so that our future generations face a challenge that can be overcome, or at the very least, adapted to.

Times Are Changing

During the lunch break, I surveyed the open tables and picked one that had a few young women sitting at it. Surprisingly, most of them were law students. They had a gleam in their eyes – a combination of adrenaline and nervousness that being at a leading conference of environmental lawyers brings to those studying the law and fantasizing about their young professional careers. For the first time at one of these events, I was the one giving advice on how I landed where I did and what I discovered about working in the field over the years. This is just one more reason why times are changing in this field. The challenges that those in our field face are pretty steady – clean air, clean water, waste reduction – but the policies are everchanging and those who have the power to affect change differ as time goes by. With a new crop of young lawyers entering the workplace, and an opening for progressive states and private sector companies to take the lead, the future will be shaped by new perspectives and decision makers.

That’s my prediction after this year’s conference…then again, in this field and with an election upon us, next year’s conference could be quite different. For lawyers in the field, and regulated companies, perhaps the best advice is to keep moving forward toward progress on environmental challenges because the planet, and ultimately future generations, are what is at stake.