The perversion of the Department of Justice by Donald Trump and Attorney General William Barr comprises an unprecedented threat to American constitutional democracy and may be creating the foundation of an autocratic form of government. The courts & Congress have the lawful authority to scrutinize what appears to be AG Barr’s continued political interference in the independent work of The Justice Dept’s prosecutors. I count myself among more than 2000 fellow DOJ alumni who urge these institutions to conduct oversight. As a Justice Department lawyer I served both Republican and Democratic administrations ranging from Nixon through Reagan and I am proud to stand with my colleagues against the politicization of the DOJ and for the rule of law. See the letter from those colleagues at https://medium.com/@dojalumni/doj-alumni-statement-on-flynn-case-7c38a9a945b9
Let’s not set our hair on fire over this rule revision. It is undoubtedly bad and over-reaching, but it was issued in response to reasonable concerns about the over-reaching of activist influences at EPA during the Obama administration. The WOTUS rule codified an extreme interpretation of the term “waters of the United States” that required getting federal government authority to perform any work on property that had, among other minimal and inconsequential features, characteristics such as dry gulches and man-made ditches that intermittently fill with water, even if they had no connection at all to a flowing stream. The burdens imposed on both agriculture and construction from this definition far out-weighed the environmental benefit of the restrictions imposed by the regulation. The solution to this, however, should have been to return to a common sense scientifically supported interpretation rather than (almost literally) “throwing out the baby with the bath water” as this new rule does. Regrettably, the new rule will do much more harm than the one it has, for at least the time being, replaced. I anticipate that the courts will throw out the Trump-EPA rule and require the agency to issue a re-write, reflecting sound science and balanced policy.
The article from law firm Holland & Knight linked below describes proposed legislation, “the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act,” to be introduced by the chairman of the House Energy and Commerce Committee (Frank Pallone D-NJ). The CLEAN Future Act would require Net-Zero Emissions by 2050. If some form of this legislation were to pass, with its requirements for dramatic reductions in carbon emissions and the stimulation it would provide for clean energy production, I would hope for it to have an effect similar to that of the Public Works Administration (PWA) provision of Franklin Roosevelt’s New Deal National Industrial Recovery Act of 1933 (NIRA). Title II of NIRA created the PWA to award $3.3 billion in contracts for the construction of public works. (The government did not directly employ workers on PWA projects, as it did in a later New Deal program with a similar name, the Works Progress Administration (WPA).) The PWA oversaw an enormous number and variety of public works projects, including schools, hospitals, post offices, courthouses, roads, bridges, water systems, and waste treatment plants. Its two most prominent projects were the construction of the Triborough Bridge in New York City and Boulder (now Hoover) Dam on the Colorado River in Arizona. Ultimately the PWA completed more than 34,000 projects around the country. Regrettably, The NIRA was not as successful in many of its other parts, and the Supreme Court invalidated the Act in 1935, but many of its provisions were included in subsequent legislation and the achievements of the PWA have been long lasting and beneficial. Even if the CLEAN Future Act were it to pass in the House, it would probably either fail or be gutted in the Senate and eventually be vetoed by the current occupant of the White House. I sincerely hope that my pessimism is misplaced.
“The Hill,” a nonpartisan news outlet that focuses on the inner workings of Congress and the nexus of politics and business, contains a story today about a U.S. Government Accountability Office report that at least 60 percent of Superfund sites are vulnerable to climate change impacts.
The flooding and other natural catastrophes caused by or associated with climate change we may anticipate in the near future should shake our confidence in the continuing safety and reliability of Superfund cleanups across the land.
Over the course of my career practicing environmental law, I have worked on the remediation of dozens of hazardous waste sites, governed by both federal and state laws (as well as by private arms-length agreements). All those efforts included strict regulatory controls, based on the best then-current scientific and engineering opinion. In none, however, other than building in accommodation for concepts such as flood-plain planning and guards to avoid adverse effects of 25, 50, and 100 year floods, did the remediations take into consideration the potential effects of climate change. To be fair, none of the projects on which I worked were completed since our recently acquired sensitivity to the effects of climate change. This does not reduce the importance of reviewing all hazardous waste remediations for their adequacy in the face of what we now anticipate climate change may do to their efficacy.
Regrettably, EPA does not now appear up to the task. On the other hand, state governments have both the incentive and the independent review and enforcement authority to take appropriate action. Further, the potential draconian consequences private parties face that arise from the retroactive, strict, and joint-and-several liability scheme under federal and state laws should result in efforts to include review of climate change as a factor in the continuing efficacy of cleanup efforts.
Don’t be surprised to see both state and federal legislative efforts to address this concern.
Here are two recent articles for you to consider concerning the balance between the economic benefits from natural gas/fracking and the adverse environmental consequences of plastic waste. Why can’t we balance the benefits against the adverse effects by imposing taxes on the production of plastics and plastic sources (such as natural gas extraction) the revenues of which would be used for environmental cleanup?https://stateimpact.npr.org/pennsylvania/2019/11/15/despite-scotlands-fracking-ban-imported-american-shale-gas-is-key-to-the-economy-there-to-some-its-an-uneasy-state-of-affairs/ https://www.weforum.org/agenda/2019/07/environmentalists-have-removed-nearly-40-tonnes-of-trash-from-the-pacific/
A day does not seem to pass without another story about the damages wreaked on the environment by plastic waste. Here’s another:
Having practiced environmental law for more than 40 years, only recently have I realized how much every individual can do to help protect, preserve, and cure our environment. If each of us makes a little effort the results can be monumental. You don’t have to be 100% committed and be a purist to be able to contribute. I know I can be doing a whole lot more myself. Its like a lot of things in life, you do what you can to do better than you have in the past. See the article I’ve posted below from the UC Berkeley-UCLA Law Schools’ “Legal Planet” for some helpful suggestions.
Please take the time to read the short article I’ve copied below “A Welcome Victory in the D.C. Circuit” written by Berkeley Law Professor Dan Farber for Legal Planet. Dan discusses a recent decision from the U.S. Court of Appeals for the D.C. CIrcuit in which it rejected an industry challenge to certain rules under the Clean Air Act. Dan parses the careful reasoning and systematic analysis of the unanimous Court (made up of two Democratic and one Republican appointee). What this and other such courts do provides such a remarkable contrast to the knee-jerk, partisan, anti-science rhetoric that continues to emanate from the White House and its supporters.
Dear Friends and Colleagues:
I write to let you know that I now have a new Connecticut office for the Trilling Environmental Law Firm, LLC:
1177 High Ridge Road
Stamford, CT 06905
When I moved to Florida in July 2017, I did not anticipate that more than two years later I would still have a relatively active law practice in states where I am admitted to practice. Although I have turned down several proposed engagements since moving here and have not sought to expand my practice, I have continued working for clients of long standing on matters I brought with me from Connecticut.
Florida’s rules on the unauthorized practice of law are draconian. Accordingly, I do not hold myself out to be a Florida lawyer, do not offer advice or representation on Florida matters, and do not maintain a Florida office. Given my clients’ needs, I continue to provide them with representation from my Connecticut office, and all official/business correspondence should be directed to my new office address in Stamford.
Thanks for your attention and let me know if you have any questions.
As many, if not most, of you may already know, my wife Sue and I moved this past summer from our home in Connecticut to Florida, where we now live in West Palm Beach – close to our daughter Jessica Lifshitz, son-in-law Dr. Oren Lifshitz, and grandchildren Jordan and Maya, who reside in Palm Beach Gardens. I write not merely to convey that personal news, but also for professional reasons: to let you know that I have given up my Of Counsel affiliation with Hickey Smith, LLP, where since October, 2016, I had maintained a presence at that firm’s New York City office. I enjoyed my brief time at Hickey Smith and will miss dealing with that firm’s fine and dedicated lawyers and staff. If you would like to reach me now on a professional basis, however, I request that you do so using my Trilling Environmental Law Firm, LLC contact information: 2579 Clipper Circle, West Palm Beach, FL 33411; 203 556-3764; email@example.com. Thanks