Earth Day at 50: Our System of Protections Is Failing Us

Planet Earth overlaid on a texture of cracked mud.

By David J. Hayes

The following appears in the March-April 2020 issue of The Environmental Forum, published by the Environmental Law Institute (ELI):

Earth Day 1970 energized America to construct the system of environmental protection that is in place today. Fifty years later is a propitious time to issue a report card on how well the system is doing.

For a midterm grade, doled out at about the half-way point (let’s say, 2000), I give the system a B. For my final grade, I can only give an Incomplete, with a stern warning that our environmental system is trending toward failure.

Some grade inflators will quibble with the midterm’s B grade. After all, by 2000, the Clean Air Act, Clean Water Act, National Environmental Policy Act, Superfund, Resource Conservation and Recovery Act, and pesticide and chemical regulatory laws were all up and running. These laws appeared to cover the waterfront; their headliners (the air and water acts) embraced a federalism approach that delegated significant authority to the states; enforcers (mostly federal, with some state help) were on the job, and feared; and major companies (and their counselors) stressed their environmental credentials and were loath to diss the EPA.

So why the B? For one thing, by 2000, EPA was coasting, and a bit smug. The agency gave lip service to environmental justice concerns, but place-based issues have never been the nationally focused EPA’s strength. Plus adequate protections for some pernicious pollutants, like deadly small particulates, were not in place.

What really dragged the overall grade for 2000 down, however, was the mixed environmental record between 1970 and 2000 in the natural resources and energy arena. Pretty much everyone in EPA’s orbit was oblivious to the environmental importance of these sectors. (Me, too, prior to 1997, when I became Interior Secretary Bruce Babbitt’s counselor and, later, deputy secretary.)

We know now that the federal resource agencies, led by the Interior Department, the Agriculture Department, and the National Oceanic and Atmospheric Administration, are big-time environmental players with responsibilities over public lands, working landscapes, major water supplies, wildlife, fisheries, and cultural resources. But through much of the 1970s and 1980s, resource agencies run by Interior Secretary James Watt and his ilk were piling up low environmental grades.

Energy regulatory law — historically, an environmental backwater — also exerted downward grading pressure. By 2000, the Federal Energy Regulatory Commission had begun to open interstate electricity markets. But economics, and not the environment, ruled. Energy regulators, taking their cues from state-sanctioned monopoly utilities, protected incumbent fossil fuel suppliers over clean energy insurgents.

As we contemplate a final grade, however, a midterm B looks mighty good. We’re going downhill, fast.

Our efforts to combat climate change, for example, are in deep trouble. After an Obama-era burst of ground-breaking, EPA-led climate regulatory activity, the Trump administration has reversed course and is seeking to deconstruct EPA’s emissions restrictions on the coal, oil and gas, and automobile sectors. Meanwhile, resource agencies’ fledging efforts to measure and sequester carbon on public and working landscapes have largely dried up, as have their scientific efforts to help communities cope with new climate realities.

The energy regulatory system also is standing in the way of climate progress. A remarkable state-led swing toward clean energy and net-zero carbon goals — spot-on, systemic answers to the climate emergency — is being stymied by an outmoded system of energy laws and institutions (including FERC and state public utilities commissions) that lean against competition, climate concerns (including a recognition of carbon’s true costs), and toward fossil fuel incumbents and the status quo.

But the bleak climate picture is made worse by the current administration’s simultaneous attacks on long-standing environmental norms and laws. Vigorous enforcement of environmental laws has evaporated; Clean Water Act jurisdiction is being radically cut back; large swaths of sensitive lands and offshore waters are being sacrificed, needlessly, for oil and gas drilling; and so much more.

So, at a time when we should be celebrating our 50th Earth Day, our nation’s overall environmental record merits only an Incomplete, and borders on failure. Our system of environmental law must move beyond an end-of-pipe, industrial- pollution mindset and embrace the type of systemic change needed to address climate change and foster sustainability in the 21st century — in our energy and transportation systems, and on our landscapes. But first, we must support leaders who reaffirm our environmental values, and are willing to break some eggs to transition to a clean energy economy. Otherwise, we are headed toward an environmental crack-up.

David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.