By Sarah Cinquemani
ABA SEER Symposium
On Thursday, April 20th the American Bar Association’s Section of Environment, Energy, and Resources hosted A New Era of Environmental Law: Foundations and Principles Colloquium at Elisabeth Haub School of Law. The daylong event consisted of four panels and a keynote lunch address by John C. Dernbach, Commonwealth Professor of Environmental Law and Sustainability at Widener University Commonwealth Law School. Pace Environmental Law Review editors and junior associates volunteered and attended the numerous panels throughout the day along with other Pace Law students, faculty and staff, and members of the ABA SEER.
The morning started with a welcome address by section chair, Seth Davis, followed by the first two panels Pollution and Enforcement and Land Use: Climate Change Mitigation, Resilience, and Sustainability. The first group of panelists, Judith Enck, Haub visiting scholar, Joan Leary Matthew, NRDC, and Amy Sinden from Temple University Beasley School of Law, presented their thoughts on the political climate and the impact that will have on pollution. They emphasized a need to litigate to enforce the laws we have in place and to hold the government accountable for protecting the public health and environment. Sean Dixon from Riverkeeper and Lee DeHihns from Alston & Bird in Atlanta were the commentators and Pace’s environmental fellow, Renner Walker moderated the panel.
The speakers on the second panel suggested a different approach to addressing the New Era of Environmental Law, instead focusing on engaging state and local communities to use the powers delegated to them to enact laws and enforce the policies in place. Professor John Nolon captured his view of the political climate with a metaphor comparing the current administration to a sagebrush. The sagebrush effect illustrates the power of the plant to withstand drought conditions by absorbing water during the day and releasing it at night when it is cooler to benefit itself and the other plants around it. The sagebrush symbolizes the drought we are facing under the current administration as we see a drastic reduction in environmentally sound policies, but the need to adapt to fight for the environment in creative ways.
Many people are concerned about the new administration’s disregard for the Paris Agreement and reaching the goals set by the United States. Professor Nolon pointed out that in 2014, 11% of CO2 emissions were sequestered by the natural environment and it is the state and local governments that largely control the natural environment. As a result, some U.S. cities boast lower per capita energy use and greenhouse gas (GHG) emissions than at the national level. These dramatic numbers are a direct result of the tools local governments use to drive the conversation about addressing climate change like: mixed use zoning, Transportation Oriented Development, and reducing parking requirements or removing them altogether. Mark Lowery, from the NY DEC, highlighted New York State’s climate initiatives like Governor Cuomo’s goal of reducing GHG emissions by 80% of 2005 levels by 2050. While Lowery commended the efforts of NY and California, the actions of two states will not be enough to meet the Paris Agreement goals and there will certainly be a void in progress towards reducing the effects of climate change. New York State enacted the Smart Growth Public Infrastructure Policy Act of 2010 which established 10 smart growth criteria that state infrastructure projects must meet “to the extent practicable” to make projects more sustainable. NYS has also created one of the most comprehensive interagency programs in the country, Climate Smart Communities, which is a free and voluntary program that any city, village, town or county in the state is eligible to join. The goal of the program is to try to provide support for the municipalities in the form of information, monthly webinar series, email notices, and monetary information.
The learning didn’t stop when people started eating their lunch as Keynote Speaker John Dernbach presented his outlook on the role of lawyers in the current political climate. An engaging speaker, Dernbach reiterated what many people in the room know; we have no more time to waste thinking about how to fix our climate problem, we must act now. He presented his list of seven things all lawyers, not just environmental lawyers, can do to address environmental concerns. (1) Work for better governance; (2) Embrace sustainability and climate change as two concepts that work together; (3) Make the case in moral, ethical, and religious terms; (4) Reach out to Conservatives; (5) Walk the talk on reduced greenhouse gas emissions; (6) Join other lawyers in this effort; and (7) Spread the words. If lawyers incorporate these tasks into their work, then hopefully we will be able to see more progress.
The afternoon panels focused on energy and environmental governance. Kate Konchic from Harvard Law School began with an introduction to energy law and federalism, presenting the common constitutional issues states face in the energy sector: conflict preemption and dormant commerce clause claims. Next Doug Smith, one of the top energy lawyers in the country from Van Ness Feldman, LLP in Washington D.C., presented relevant questions lawyers in the sector of energy law must grapple with: How far can clean energy policies go if the administration does not have a climate change policy? What is the right balance between the market making decisions and the government—state vs federal? How does that forum effect the outcomes? Smith touched upon the new idea of net metering, a concept that the drafters of the Federal Power Act did not contemplate. At the core, net metering allows home owners who have solar panels to be competitors in the wholesale market, which directly conflicts with the FPA. While consumers are able to work around this issue, it’s becoming harder to do so.
The third panelist, Karl Rabago from the Pace Energy and Climate Center, spoke about the future of energy. The electric utility industry is the largest polluter in the world and states play a huge role in determining the direction of the electric energy sector because they can rely on 10th Amendment of the US Constitution to pursue state strategies for renewable energy. But that also comes with an increase in “pollution havens” as federal regulations are cut back, eroding the floor so states can sink as low as they choose when it comes to regulating energy markets.
The final panel, Environmental Governance, brought together four speakers: Roger Feldman, from Andrew, Kurth, Kenyon, LLP, Shelia Foster from Fordham Law School, Brad Ives, Associate Vice Chancellor for Campus Enterprises at UNC Chapel Hill, and Thomas Peterson, President and CEO of the Center for Climate Strategies who covered a broad range of subjects. Sheila Foster discussed the West Harlem Climate Action Plan which proposed climate action grids in the neighborhood that would consist of solar panels on housing developments. This gets residents involved and invested in their community and is a tool to combat the looming issue of gentrification. Another issue is private environmental governance which Roger Feldman suggested is a sector that should also have a seat at the table for these discussions. The private sector wants to make money and there is a way to do so sustainably, but businesses must be a part of the conversation and must continue to innovate to ensure they are keeping up with consumer demands for environmentally friendly quality.
Brad Ives shared his perspective of how higher education can also take part in a more sustainable future. There are numerous lists that highlight the efforts of schools like Princeton Cool Schools and Sierra Club’s green schools list as well as international groups that rate campuses. There are many opportunities for colleges to visibly take a stand by signing onto public commitments while also being pressured by students and the community to show leadership. While public schools cannot buy carbon offset credits, those with big budgets have the freedom to experiment and utilize the power of their brand to take action. For example, UNC has set a goal for 3 zeros: become GHG neutral by 2050, become water neutral and reduce potable water usage by 65%, and become a zero-waste campus, which is a constant battle as the student population is constantly changing and altering waste habits is something that each person must be educated about.
As the Colloquium came to a close, attendees were reminded that the new era of environmental law requires more than just lawyers at the table. Though the panels were filled with expert attorneys in their fields, other valuable stakeholders were absent and having them involved in the conversation now is what will help us make a different moving forward. Thank you to Seth Davis, ABA SEER section chair and the hard work of his committee for putting on an incredibly informative and thoughtful program.