Moving Environmental Politics Out of the Courts

Alyssa Battistoni— 

On the campaign trail in 2016, Donald Trump took aim at Barack Obama’s signature climate change policy, the Clean Power Plan, as a “job-killing regulation.” Trump vowed to tackle regulations “on Day One.” By March 2017, he had signed an executive order directing EPA head Scott Pruitt to review the policy.

But even before Trump was elected, over half the states in the country joined oil and gas companies in suing to overturn the Clean Power Plan in 2016, accusing the EPA of “regulatory overreach.” Now that Trump is trying to roll back the CPP, a group of seventeen different states is suing the EPA to stop it from delaying implementation of the plan. The courts may save the Obama policy yet. But the ongoing litigation battles illustrate how court-centric environmental politics have become, and the limits of legal strategies in achieving political victories.

At the heart of the Clean Power Plan is the 1970 Clean Air Act and its 1990 amendments, which regulate the emission of air pollutants. It was intended to be flexible and far-reaching, so that the EPA could apply it to environmental pollutants that weren’t considered dangerous at the time of the bill’s passage. Using it to regulate carbon emissions was technically within both the spirit and the law of the bill.

But it’s also true that using the CAA to regulate carbon was a workaround to the failure of political solutions. Climate legislation had repeatedly gotten stuck in Congress, blocked by the many lawmakers in the Republican Party who deny that climate change is happening. Facing a seeming impasse in the legislature, environmental groups turned instead to the courts and the administrative state.

During the Bush years, fifteen states joined environmental groups in suing the EPA to regulate carbon emissions. The Supreme Court ruled in their favor in 2007. The ruling stated that carbon dioxide qualifies as an air pollutant under the CAA, gave the EPA the power to regulate it, and required the agency to assess the need for regulation. Upon finding that carbon dioxide poses a significant threat to public health, the EPA was required to regulate it. The Clean Power Plan built on this foundation to regulate carbon pollution emitted by power plants. It set standards for carbon emissions from coal and gas-fired power plants, with the details of compliance left up to states, to take effect beginning in 2020.

The Clean Air Act is part of a suite of laws, along with the Clean Water Act, National Environmental Policy Act, and creation of the Environmental Protection Agency itself, that remain the foundation of American environmental law. In the decades since, environmental groups have become very good at using these laws to advance their aims. These laws remain powerful. But too often, using them in litigation has come to substitute for other forms of political action.

Legalism has been baked into the environmental movement since these landmark environmental statutes were first passed.

Environmental historian Paul Sabin observes that environmental lawyers deliberately sought to distance themselves from more militant political actors of the turbulent 1960s: “litigation offered a practical alternative to urban riots and student protests.” James Gustave Speth, co-founder of the National Resources Defense Council, later expressed regret that “we opted to work within the system of political economy that we found, and we neglected to seek transformation of the system itself.”

In fact, the system of political economy was being transformed—but not in the direction that Speth might have wanted. Pollution is often described as a “market failure”: because companies don’t pay for the pollution they cause, the cost of environmental damage isn’t reflected in market prices. But neoliberal economists like Milton Friedman argued that the state shouldn’t necessarily step in to address the failures of the market: “government failure” was a problem too. Environmental lawyers, too, used the language of government failure, charging that federal agencies served the interests of corporations rather than the public.

But instead of joining campaigns to hold public officials accountable to the people they served, many lawyers— in Sabin’s words, “elitists who highly valued professionalism and technical expertise”—used their knowledge and skills to take on corporations and government single-handed. The public-interest law organizations they founded were supported by the Ford Foundation; more confrontational groups like the National Welfare Rights Organization, which sought to advance the economic program of the civil rights movement through community organizing, were not. Over time, environmental lawyers lost touch with movements; meanwhile, the critique of government was increasingly used to dismantle rather than reform the welfare state.

This isn’t, of course, to blame neoliberalism on environmental lawyers. Nor is the point to make excuses for the Trump administration’s active efforts to dismantle environmental protections and undermine climate programs. Scott Pruitt’s intentional efforts to slow down the EPA’s functioning have ground the agency to a halt at a crucial time for climate action.

Yet it remains the case that too many climate and environmental strategies continue to lean too hard on litigation. A number of cities and counties have begun suing fossil fuel companies for the impacts of climate-fueled disasters on local infrastructure and in turn, on local budgets. But no major new environmental legislation has been passed since the laws of the 1970s. The environmental movement can’t keep leaning on a political mandate more than half a century old.

Legal tactics can win battles, but the problem arises when legal battles become the primary mode of political struggle. Litigation takes years and costs millions of dollars. It takes place largely out of public view, save for the occasional headline-grabbing Supreme Court case. In the environmental realm, the opacity of legal strategies contributes to the idea that environmental issues are technical and complex—something for experts to sort out rather than for regular people to care about. Litigation, that is, avoids the challenges of mass political organizing—and while this can seem like a path to victory in the short term, in the long run such strategies can lead to the withering away of popular support.

As Wendy Brown and Janet Halley observe in their book Left Legalism/Left Critique, “As we incessantly refer our political life to the law, we not only sacrifice opportunities to take our inherited political condition into our own hands, we sacrifice as well the chance to address at a more fundamental or at least far-reaching level various troubling conditions which appear to require redress.”

To move beyond the limits of legalism, the environmental movement will have to return to politics.

The right has a head start in politicizing the law. As attorney general of Oklahoma, Pruitt dissolved the office’s Environmental Protection Unit and replaced it with a “Federalism Unit” dedicated to fighting what Pruitt portrayed as regulatory overreach, including that of the EPA. In that capacity, he sued the agency he now leads thirteen times, often using letters drafted by representatives of the energy industry. Pruitt’s trajectory is typical of growing activism amongst attorneys general on the right. The states that are suing to end the CPP are by and large Republican states where the coal industry has power, with Republican attorneys general. Over the course of the Obama administration, state attorneys general filed 59 multistate lawsuits against the Obama administration—up from 45 filed during the Bush years, and just 18 under Clinton. The right-wing U.S. Chamber of Commerce has pumped money into attorney general races—a move facilitated by the Citizens United case that opened the floodgates of political spending. In West Virginia, Attorney General Patrick Morrisey has actively campaigned on his pledge to lead the fight against the Clean Power Plan, and has announced his intent to run for Senate in 2020.

Campaigning to elect attorneys general who will act in the interest of the people rather than coal companies could have concrete effects on the way laws are carried out, bring public attention to dry regulatory measures, call attention to the power of fossil fuel companies in shaping the law, and, most importantly, help build the climate movement. Here we might learn from the example set by criminal justice reform activists in Philadelphia, who organized to elect the civil rights lawyer Larry Krasner district attorney on a radical platform that pledged to combat mass incarceration. Krasner won in a landslide: his program spoke to people. Krasner can’t end mass incarceration on his own, of course, but he has already begun to change the way that laws are enforced in Philadelphia. And crucially, his election was part of a broader political project to end mass incarceration and fight the systemic racism of the criminal justice system; his victory resulted from a movement and helped galvanize it further.

Healthcare offers another useful example of how the environmental movement can to return to politics. Like the Clean Power Plan, the Affordable Care Act—colloquially known as Obamacare—has been beleaguered by lawsuits for nearly its entire existence: a group of twenty-six Republican attorneys general filed a legal challenge to the bill’s constitutionality immediately after its passage. The legal battles have been going on ever since. But instead of simply continuing to fight in the courts, many on the left are starting to fight for a more substantial healthcare program under the banner of Medicare for All. Organizers are actively building support for a program that would transform American healthcare, pointing to the ways that the existing system is oriented towards corporate profits at the expense of ordinary people and insisting that “healthcare is a human right.”

A similar plan to tackle climate change might mean fighting the power of private utilities to raise rates, calling for clean energy for all, insisting that clean air is a human right, or pushing for a jobs program oriented towards environmental restoration. Some of this work has already begun—and not a moment too soon.

Building a popular environmental movement will take longer than suing the government. It may seem too slow at a time when drastic change is needed quickly. But its effects will last longer and go deeper. For the kind of social transformation climate change demands, nothing less will do.

Alyssa Battistoni is a graduate student in political science at Yale University.

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