Editor's Note: A correction has been made in the 7th paragraph, correcting "Sabin Center for Climate Change Law at NYU Law School" to read "Sabin Center for Climate Change Law at Columbia Law School" at the request of the author.
COVID-19 and the resulting economic downturn may have pushed the 2020 elections out of the headlines temporarily, but leading environmental attorneys and activists have already assembled a list of Trump administration policies they hope a Democratic administration could repeal or replace.
In a webinar [video: https://www.youtube.com/watch?v=Q7p1DxjGIj0] recently sponsored by the Society of Environmental Journalists (SEJ), leading environmental attorneys gave reporters a list of topics for possible investigative reporting, in the process laying out a plan of action for the types of regulations they would like to change, as well as voter behavior.
Calling on journalists to push a particular set of policies on voters might strike some as a violation of professional standards. However, for SEJ members, the ends increasingly justify the means.
“Journalists should have editorial independence,” concluded Emily Gertz, a member of SEJ’s board who moderated part of the discussion. “I don’t know that fair or balanced necessarily appear in our mission statement.”
The Trump administration was not represented at the SEJ webinar.
“This discussion is not a debate. We don’t have a representative of the administration here to defend their actions,” moderator and former Los Angeles Times reporter Dave Willman said at the beginning of the event.
Though no Trump administration figures were asked to speak at the webinar, the administration loomed large over the event, as speakers described the regulatory changes and executive actions they wished to see overturned under a new administration. Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, painted a picture of the dramatic changes in environmental regulation that occurred between the Obama and Trump administrations.
He described a “comprehensive, emerging executive branch approach to the climate crisis” under the previous administration that included guidance under the National Environmental Policy Act (NEPA), a public lands management policy that discouraged leasing for energy and mineral development, and the use of National Monuments designations to prevent development on vast swaths of land in the West.
“Even more generally than all of this was a commitment to mainstreaming climate change throughout the fed government,” he said, explaining that this commitment informed how the Obama administration planned to respond to climate change impacts and to attempt to prevent them.
All of these programs changed dramatically in President Trump’s first months in office. The speakers hoped that with a new president, they could change again.
“Does everything change if we get a new president? The answer is yes,” said Ann Carlson, a UCLA Law Professor with ties to the climate liability lawsuits filed by several cities and states against oil companies.
She and other environmental attorneys believe that, since President Trump used executive orders to drive regulatory reform at the EPA and other executive agencies, a future president could use the same tools to reverse this process. In the meantime, the speed with which the administration acted means that environmentalists can—and should—challenge the decisions in court.
“It is true that they acted very speedily but it is true that the wheels of justice roll slowly,” she added.
Burger agreed, explaining that rushing the regulatory process threatened the entire legitimacy of the regulatory process.
“Procedural violations are part of that,” he said. “The administrative state gains legitimacy through the process. If you ignore the process, you ignore the legitimacy of those regulations.”
For environmentalists, what they see in this type of erosion of trust in federal regulatory agencies is a threat to the types of aggressive clean energy policies they believe are necessary to halt climate change. This issue is of increasing concern, they argue, as the coronavirus and accompanying state lockdowns reduce tax revenue and the budgets of state environmental enforcement agencies.
“The basic take home is that states are the front line,” said James McElfish, a senior attorney with the Environmental Law Institute. “If the feds walk away bad it’s because there is no back stop, but if the states are up to it and have capacity they can do [regulation and enforcement.] But the states are in a world of hurt right now.”
The webinar encouraged environmental journalists to explore this topic, looking for ways that the reduction in environmental enforcement was hurting vulnerable communities. These stories will also help persuade voters to make green issues a higher priority, they concluded.
“Environmental support has long been very broad and very shallow,” said Burger. “The assumption is that the stories aren’t registering and people aren’t getting the information or aren’t responding as fulsomely as they might, but I think there is a lot of support.”