Juliana v. Trump: Kids Fight Climate Change

By Dr. Elizabeth Blum[1], author of Love Canal Revisited; Race, Class, and Gender in Environmental Activism

On June 1, 2017, President Donald Trump withdrew the United States from the Paris climate accords signed the previous year under President Barack Obama. Noting that “I can put no other consideration before the wellbeing of American citizens,” Trump justified his decision by stating that the accord “is simply the latest example of Washington entering into an agreement that disadvantages the United States, to the exclusive benefit of other countries, leaving American workers, who I love, and taxpayers to absorb the costs in terms of lost jobs, lower wages, shuttered factories and vastly diminished economic problems.”[2]

The president’s decision came during a decade when polls revealed that many people, and young people in particular, emphasized climate change as a significant global problem. An Ipsos poll in 2015 noted that knowledge of the terms “global warming” and “climate change” were near universal among American eighth graders, who not only believed it to be a real phenomenon, but pointed fingers at using gasoline, cutting down trees, and creating electricity as major causes. The eighth graders also believed that adults and previous generations saddled them with a problem for their future.[3]  According to another poll taken four years earlier, the Nature Conservancy reported that “American youth are unhappy with the condition of the environment, and lack faith in adults to address it … A majority of American youth (51%) rate ‘the condition of the environment and nature’ as an ‘extremely serious’ or ‘very serious’ problem.”[4]

Seemingly paradoxically, at the same time adults note young people’s awareness of environmental issues, they also gnash teeth and decry children’s overreliance on technology and lack of interest in the outdoors. Concerned about youth “spending more time in front of screens than outside,” President Obama launched the Every Kid in a Park program, which granted every American fourth grader and their family free admission to all federal land.[5]  The National Park Service later announced the continuation of the program in subsequent years.[6]  Richard Louv’s bestselling Last Child in the Woods blamed computers and video games on children spending less time outdoors.  “Nature-deficit disorder,” as he described it, led to attention deficit disorder, along with other problems.[7]  Adults consistently blame modern technology as an impediment to young people “connecting” with nature.

A group of twenty-one young people, ranging in ages from 10-20, defied these prescriptive, stereotypical connections of modern technology with nature. With the help of committed lawyers and scientists, they filed a pathbreaking lawsuit in 2015. Styled Juliana vs. Trump, the case alleges that that the federal government violated the constitutional rights of young people in contributing to, and failing to act sufficiently against, climate change.[8] The plaintiffs, referred to as the “Climate 21,” demand that the court tell Congress and the President to devise and implement plans to alleviate the root causes of climate change.

Julia Olson, the main lawyer in the case, brought the children together as plaintiffs. Only a couple of months prior to the birth of her second son, Julia Olson sat through the documentary An Inconvenient Truth, which followed Al Gore giving his pathbreaking climate change talks. She remembers crying through most of the film, despite the fact that climate science was quite familiar to her as an environmental attorney. She felt overwhelmed by Gore’s message in the film, faced with the “added responsibility of ‘I’m bringing them [her children] into the world and I’m also leaving them with this planet that may not be safe for them.’” Faced with the film’s visceral message, Olson decided to act not only on behalf of her own children, but also for children globally and future generations.

Olson founded an organization called Our Children’s Trust, and began working toward a climate case, buoyed by a successful example of legal activism in the Philippines. [9] She specifically planned for children to be front and center, insisting that each plaintiff join the case of their own accord. Olson supported a view of legal activism as a path for children’s agency in the face of such an overwhelming problem as climate change. She noted that she teaches her children small measures, like refusing “plastic straws and toys with unnecessary packaging,” but realized that these typical adult prescriptions to environmental change simply lack effectiveness. “They’re going to need tools of how to live in [their] community and depend on people … and find ways to deal with the catastrophes that will come,” she notes.[10] Finding an empowered voice, as well as their place within a democratic republic reinforces that idea.

In most categories but geographic location, the young people Olson picked represent diverse characteristics. Eleven of the Climate 21 are from Oregon, and one hails from Washington state, making the Pacific Northwest overrepresented. Other areas have representation, though, with two plaintiffs from Colorado, and one each from Alaska, Hawaii, Florida, Arizona, Pennsylvania, Louisiana, and New York. The youngest plaintiff, Levi Draheim, is now 10, and was 8 when the lawsuit started; seven of the plaintiffs are now old enough to vote, and seven others are within two years at most of doing so. Gender and ethnicity show the greatest balance. The plaintiffs divide into 11 males, and 10 females. Almost half have non-white heritage, including African Americans, Native Americans, and Pacific Islanders. Overall, the case seeks most notably to demonstrate a broad array of inclusion, something for which the environmental movement has frequently been criticized.

The Climate 21 entered into the litigation for different reasons. Many of the plaintiffs come to their activism directly from their experiences in nature. Twenty-year-old Tia Hatton expressed a deep connection to the area near her home. She notes that “The sagebrush-filled desert skirts around [her home of Bend, Oregon], leading into National Forests, ancient rock formations, and vibrant rivers. This was my home growing up. The diverse landscapes of Bend became part of me … from a young age, I sought to protect this part of me.”[11]  Her enjoyment of Nordic skiing awoke her to the dangers of climate change, as she noticed snow levels regularly dropping. Levi Draheim, a 10-year-old boy from Indiatlantic, Florida, enjoyed going to the beaches regularly near his home. He watched and learned about progressive change in his area. He noted that “if the sea rises, our [home] could just be underwater. And our reefs … They’re just almost gone.  I can’t even go to the beach [anymore]. It gives me nightmares.”[12]  Deeply connected to the nature around their homes, Hatton and Draheim root their activism in dismay over real and future changes to places they love.

Jamie Lynn Butler of Arizona, and Jacob Lebel and Alex Loznak, both from Oregon, come from farming families. They each note that ever-increasing droughts and heat waves dramatically affected their families’ abilities to make a living. [13] Loznak noted that “during those heat waves, many of our trees died … We had plantations of timber trees that died. Some of our hazelnut trees died or needed intensive watering as a result.”[14] Butler remembers her family forced into selling off livestock when droughts made watering them prohibitive.[15] Contrary to Louv’s image of modern children as so unhealthily immersed with their technology, these young people demonstrate deep connections to nature that have informed and strengthened their beliefs in climate change. Rather than retreat into the world of video games, the Climate 21 chose to develop a political voice in the face of disenfranchisement.

In addition to a strong sense of place, many of the group also have deep interests in other environmental issues. Some pursue this through education. Hatton is an environmental and international studies major at the University of Oregon.[16] Senior Alex Loznak is a Sustainable Development major at Columbia University. Others have prior (and continuing) experience with activism. Jacob Lebel, a Canadian by birth who now lives in Eugene, Oregon, responded quickly to a threat by a Canadian company to build a natural gas pipeline close to his family’s farm. His activism helped to stop the plans for the pipeline. Expanding his geographical concern, he also protested at Standing Rock over the planned pipeline there.[17] Miko and Isaac Vergun participate in Plant for the Planet, a growing network of groups of children who help plant trees as a response to climate change.[18]  In 2014, Avery McRae (now 12), won a local award for raising more than $300 through a “fundraising party with games, crafts, and an introduction about the important role of salmon in the ecosystem.” She noted that her inspiration for the project came from “walking along Whitaker Creek … where she saw salmon spawning.”[19] Again, McRae demonstrates that her activism flowed from personal interactions with nature.

Families and culture provide an important entry point for activism for many of the young plaintiffs. Xiuhtezcatl Martinez, probably the most visible of the plaintiffs, cites his Aztec heritage as instilling a “sense of responsibility as a person to protect and connect and be a part of something.” Both of his parents also connected through activism – his mother founded an Earth Guardians school in Hawai’i and his father served as an Aztec “ambassador for Mexico.”[20] Through her extended family, New Yorker Victoria Barrett has viewed climate change both from the American perspective and the developing world. Even over her lifetime, her Honduran grandparents have steadily fought the rising levels of the sea near their home by building ever increasing barriers against flooding.[21]

Louisianan Jayden Foytlin followed the example of her mother, Cherri, in diving into activism. In 2010, “stage-managed trips” organized for the press by BP in the wake of the Deepwater Horizon disaster frustrated journalist Cherri Foytlin. When she hired a fisherman to take her into the Gulf, they found a pelican drenched in oil that died soon after. Determined to take action, Cherri accepted the leadership of Bold Louisiana, a group fighting oil development expansion. Although Cherri worried about her daughter’s activism, she also saw it as a constructive way for Jayden to participate. [22] Similarly, Jamescita Peshlakai, a state senator in Arizona who has made climate and environmental issues key to her service, influenced her Navajo daughter Jamie Butler to be active.[23]

Importantly, many of the Climate 21 use social media and technology to promote their activism and views of climate change. The young people refuse the negative nature-technology dichotomy so loudly espoused by adults. Martinez, who aggressively uses social media and performs hip-hop music on climate change, makes this connection explicit. He notes that the “reason I’ve been able to have such a huge reach with the Earth Guardian movement is because of social media, and the way it connects us all as a global family.”[24] Jacob Lebel, along with many others, posts videos on youtube to publicize issues. Lead plaintiff Kelsey Juliana, Journey Zephier, Alex Loznak, Nathan Baring, and Kiran Oommen all have Twitter and/or Instagram accounts to spread news of their activism. Others regularly use crowdfunding sources to publicize and seek support for their work. Juliana requested “adoption” to fund her participation in a 2015 climate march across the country. Miko and Isaac Vergun, as well as Zephier, used gofundme accounts to assist in traveling to various conferences and training sessions. Their highly developed use of social media allows them to connect with peers – using a media that they find familiar. Rather than technology precluding interaction with the environment, young people use it to spread their message and safeguard nature.[25]

Although parents and other adults have often been supportive, some adults have a more negative reaction, often rooted in concerns that political activism challenges adult domination over children. For example, Jayden Foytlin of Rayne, Louisiana, lost her best friend over her involvement in the case.  Her friend’s mother stated that “I don’t want nothing to do with children being in adult situations nor will any of our children. I think it’s pathetic that a young girl is even involved in something like this.”[26]  A frequent commenter on CNN’s stories, Balatonian, noted that “Kids must just remain good boys and girls, go to school and study. When they become responsible and sensible adults, then they can participate in voting for and criticizing their adult peers.” [27]  In both of these instances, adults reflected fears of children stepping outside of prescribed roles as a subjugated class to “inappropriately” challenge adults.

The case has been weaving its way through the rather byzantine legal system over the past two years. Unlike earlier efforts, however, Juliana v. Trump has achieved some notable successes. Judge Thomas Coffin recently set a trial date of February 5, 2018.  Judge Ann Aiken upheld his decision, noting that the case “is of a different order than the typical environmental case.”[28] The Trump administration reacted to this setback by filing a writ of mandamus with the Ninth Circuit Court of Appeals, where they objected both to the “the unlawful exercise of [the court’s] jurisdiction” and “the staggering burden imposed on the federal government by the ongoing discovery” in the case. They asked  that the appellate court order the lower court to dismiss the case. The Climate 21 filed a response, and eight groups supported them with amicus briefs. All now simply await the Ninth Circuit’s response or the beginning of the trial.[29]

Regardless of the outcome of the case, the efforts of the Climate 21 provide a valuable lesson in how children perceive and interact with the environment. Although they lack a formal political voice in society, these (admittedly exceptional) young people chose to participate in a legal, peaceful protest to affect change. Their actions should remind adults that the 21st century’s children maintain an intimate connection to nature that technology helps guide and promote. The stereotypical image of our current generation of children as lessened by their contact with technology needs serious reappraisal.

[1] The author would like to thank her husband, Sean Blum, for his invaluable help in negotiating the legal wranglings of this case, as well as Karen Ross and Kathryn Tucker for their comments on earlier drafts.
[2] Callum Borchers and Amber Phillips, “Transcript:  President Trump’s Remarks on Leaving the Paris Climate Deal, Annotated,” Washington Post, June 1, 2017, accessed June 2, 2017, https://www.washingtonpost.com/news/the-fix/wp/2017/06/01/transcript-president-trumps-remarks-on-leaving-the-paris-climate-deal-annotated/?utm_term=.7bd77ccfc164.
[3] “Nine in Ten 8th Graders Agree that Climate Change is Real and Human Activity Significantly Contributes to Climate Change,” Ipsos, March 13, 2015, accessed February 3, 2017,  https://www.ipsos.com/en-us/nine-ten-8th-graders-agree-climate-change-real-and-human-activity-significantly-contributes-climate?language_content_entity=en-us.
[4] “Kids These Days:  Why is America’s Youth Staying Indoors?” The Nature Conservancy, accessed September 5, 2017, https://www.nature.org/newsfeatures/kids-in-nature/kids-in-nature-poll.xml .
[5] Arne Duncan, Sally Jewell, Tom Vilsack, Jo-Ellen Darcy, and Kathryn Sullivan, “Let’s Get Every Kid in a Park,” The White House, February 19, 2005, accessed June 24, 2017, https://obamawhitehouse.archives.gov/blog/2015/02/19/let-s-get-every-kid-park .
[6] Hannah Malvin, “Every Kid in a Park Program Extended; 4th Graders Get Free Park Admission,” The Wilderness Society, July 28, 2017, accessed August 1, 2017, http://wilderness.org/blog/every-kid-park-program-extended-4th-graders-get-free-park-admission.
[7] Richard Louv, Last Child in the Woods: Saving Our Children from Nature-Deficit Disorder (Chapel Hill:  Algonquin Books of Chapel Hill, 2006).
[8] Originally filed in 2015, President Obama’s administration were the initial defendants in the case. Trump inherited that role with the change in administrations.  The 2015 case is the second case headed by Olson of children filing a case against the federal government for inaction over climate change in the United States.  Numerous cases at the state level have also been filed, without much success.
[9] John Sutter, “Meet the Mom Litigating the ‘Biggest Case on the Planet,’” CNN, September 13, 2016, accessed June 15, 2017, http://www.cnn.com/2016/09/12/opinions/sutter-julia-olson-climate-kids-profile/index.html .
[10] Sutter, “Meet the Mom Litigating the ‘Biggest Case on the Planet.’”
[11] Tia Hatton, Biographical entry, Planet Forward, accessed September 1, 2017, http://www.planetforward.org/users/tia-hatton .
[12] John Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change,” CNN, November 10, 2016, accessed February 10, 2017, http://www.cnn.com/2016/11/10/opinions/sutter-trump-climate-kids/index.html.
[13] Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change.”
[14] Dana Varinsky, “Meet the Kids Suing the US Government for Ruining the Earth for Future Generations,” Business Insider, November 19, 2016, accessed September 3, 2017, http://www.businessinsider.com/kids-suing-government-for-climate-change-2016-11.
[15] Emery Cowan, “As Climate Lawsuit Faces Challenge, Navajo Teen Contributes from Afar,” Arizona Daily Sun, August 30, 2017, accessed September 3, 2017, http://azdailysun.com/news/local/as-climate-lawsuit-faces-challenge-navajo-teen-contributes-from-afar/article_d399f129-e92c-5abd-81d0-9ddb8e6dabd6.html.
[16] Joe McCarthy, “Meet Tia Hatton, a Global Citizen of  America Who’s Suing Trump Over Climate Change,” Global Citizen, March 17, 2017, accessed September 3, 2017, https://www.globalcitizen.org/en/content/global-citizen-of-america-tia-hatton/ .
[17] Kim Brunhuber, “Why A Canadian Teen Joined American Youth in Suing U.S. Over Climate Change,” CBS News, January 16, 2017, accessed August 1, 2017, http://www.cbc.ca/news/world/lebel-lawsuit-climate-change-1.3931321 .
[18] “The Story of the First Oregon Academy,” January 12, 2015, accessed September 3, 2017, http://www.plant-for-the-planet.org/en/about-us/news/f1a2f4d7-9811-11e5-a0ac-902b34544d94.
[19] “Salmon Heroes,” Northwest Center for Alternatives to Pesticides, accessed August 26, 2017, http://www.pesticide.org/salmon_heroes .
[20]Zoe Loftus-Farren, “Xiuhtezcatl Martinez:  Youth Voices are Powerful,” Earth Island Journal, Spring, 2017, accessed July 13, 2017, http://www.earthisland.org/journal/index.php/eij/article/xiuhtezcatl_martinez/ .
[21] Mike Pearl, “Meet One of the Teens Suing the Federal Government Over Global Warming,” Vice Magazine, November 10, 2015, accessed February 20, 2017, https://www.vice.com/en_us/article/kwxpde/meet-one-of-the-kids-suing-the-federal-government-over-global-warming-381.
[22] Neela Banerjee and Zahra Hirji, “Meet the Louisiana Teen Who is Suing the Federal Government Over Climate Change,” InsideClimate News, June 13, 2017, accessed August 25, 2017, http://www.nola.com/environment/index.ssf/2017/06/climate_change_lawsuit.html; Mark Hefflinger, “Over 400 Gulf Protectors Rally and Testify Against Bayou Bridge Pipeline at Public Hearing,” Bold Louisiana, January 13, 2017, accessed August 25, 2017, http://boldlouisiana.org/bbhearing/ .
[23] Emery  Cowan, “As Climate Lawsuit Faces Challenge, Navajo Teen  Contributes from Afar,” Arizona Daily Sun, August 30, 2017, Accessed September 1, 2017, http://azdailysun.com/news/local/as-climate-lawsuit-faces-challenge-navajo-teen-contributes-from-afar/article_d399f129-e92c-5abd-81d0-9ddb8e6dabd6.html.
[24]Loftus-Farren, “Xiuhtezcatl Martinez:  Youth Voices are Powerful.”
[25] “Kelsey Juliana,” The Great March for Climate Action, 2017, accessed September 1, 2017, http://climatemarch.org/kelsey-juliana/; Pam Vergun, “Vergun Plant for the Planet Germany,”  go fundme, June 4, 2016, accessed September 1, 2017, https://www.gofundme.com/VergunsToGermany.
[26] Neela Banerjee and Zahra Hirji, “Fighting Climate Change Can Be a Lonely Battle in Oil Country, Especially for a Kid,” Inside Climate News, June 13, 2017, accessed June 13, 2017, https://insideclimatenews.org/news/13062017/kids-climate-change-lawsuit-childrens-trust-jayden-foytlin-louisiana.   The negative reaction may also have stemmed from Rayne’s mostly conservative atmosphere:  many families rely on the oil industry for jobs, and complaints against the government may be more likely to be seen as unpatriotic
[27] Balatonin, comment, November 14, 2016, on Sutter, “Kids are taking the feds – and possibly Trump – to court over climate change.”
[28] Ann Coffin, Opinion and Order, United States District Court for the District of Oregon, Eugene Division,  November 10, 2016, page 52, accessed June 1, 2016, https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf .
[29] A writ of mandamus allows the appellate court to review the decision of the trial court where proceedings are still ongoing.  For an outline of the progress of the case, as well as links to the legal filings, see the Our Children’s Trust website at:  https://www.ourchildrenstrust.org/us/federal-lawsuit/ .

Protecting Pesticides & Profits: What are the EPA’s priorities?

by Robin O’Sullivan, author of American Organic

What is the raison d’être of the Environmental Protection Agency? It’s not a trick question… at least, it shouldn’t be. The EPA’s mission is to “protect human health and the environment.” One of the agency’s primary purposes is ensuring that “national efforts to reduce environmental risk are based on the best available scientific information.”[1] Those words ought to be unequivocal. Like America’s rivers, however, they’ve become murky.

Richard Nixon entered the White House when ecological awareness—like the Cuyahoga River—was aflame. Nixon acknowledged that “restoring nature to its natural state” was “a common cause of all the people of this country,” so he signed the enabling act that consolidated several federal agencies into the EPA.[2] Formally established on December 2, 1970, the Environmental Protection Agency was largely nonpartisan. Nobody wanted to assail clean air or clean water. The rationale for creating the EPA wasn’t radical. A bevy of pesticides were unregulated. Pollution was unchecked. Lead poisoning was a national scourge. The Santa Barbara oil spill galvanized eco-activists, and Earth Day—a festival born from fretfulness—was first celebrated. Evidence was incontrovertible: humans, plants, animals, soil, waterways, and the sky were imperiled. Former EPA administrator William Ruckelshaus, in an interview with the Public Integrity Project, said that environmental protection had enormous bipartisan support in the US during the 1970s.[3] Ahh, the halcyon days when science was scientific, facts were factual, and the Lorax wasn’t alone in speaking for the trees.

Here’s the predicament now. Under the Obama administration in 2016, the EPA decided to ban chlorpyrifos, an organophosphate insecticide found in dangerously high levels in drinking water. Organophosphates are banned in households but permitted for agricultural use. Researchers from universities, the National Marine Fisheries Service, and the Fish and Wildlife Service have revealed a litany of detrimental effects from chlorpyrifos and similar pesticides.[4] After extensive research directed by EPA chief Gina McCarthy, the EPA itself deemed chlorpyrifos to be unsafe to farmworkers, children, and any person coming into contact with the contaminated water. Then—rejecting its own decision—the EPA, under the Trump administration, did an about-face. New EPA chief Scott Pruitt claimed that the studies by his own agency were flawed and said that chlorpyrifos would not be banned. This reversal took place after Pruitt met privately with the CEO of Dow Chemical, Andrew Liveris.[5] Dow Chemical manufactures chlorpyrifos. American farms use 6 to 10 million pounds of chlorpyrifos on edible crops each year; meanwhile, studies have linked the chemical to autism, ADHD, and other neurodevelopmental problems in children.[6] Dow Chemical has extensive power in Washington. The mega-corporation spent over $13 million on lobbying efforts in 2016 and also wrote a $1 million-dollar check for Trump’s inaugural party.

Sure, science is not immutable. It changes when new evidence arises. However, it does not flip upside down immediately after ethically questionable cloistered meetings. Is the EPA confused about its own priorities? This could be a coincidence; but, if you were on the agency’s website in July 2017, reading its mission statement, you were invited to view the EPA’s priorities. However, when you clicked that hyperlink, you were directed to a page that said: “Page Not Found.”[7] Perplexing, yes…and vexing.

What’s worse than an EPA that’s not protecting human or environmental health? Well, no EPA at all…and that’s a sobering possibility. A recent report from the Environmental Data and Governance Initiative, an international network of academics and non-profit employees, concluded—based on confidential interviews with present and former EPA employees—that Pruitt’s ultimate goal is to eliminate the EPA entirely.[8] The Sierra Club has reported on the current president’s hostility to the EPA, asserting that “the Trump administration’s decision to not renew the appointments of 38 out of 49 advisers on the EPA’s Board of Scientific Counselors (BOSC) is a clear attempt to break up the independence and institutional memory of the agency.”[9]

What will change Scott Pruitt’s mind next? A burning river? Doubtful. A silent spring? Not likely. The American people? Perhaps. To get involved with EPA regulations, you can visit: https://www.epa.gov/laws-regulations/get-involved-epa-regulations. You might want to remind the EPA what its priorities are.

Dothan Campus head shots

Robin O’Sullivan, Ph.D., teaches U.S. history, environmental history, and cultural history at Troy University in Alabama. She is the author of American Organic: A Cultural History of Farming, Gardening, Shopping, and Eating (2015).

[1] United States Environmental Protection Agency. “Our Mission.” https://www.epa.gov/aboutepa/our-mission-and-what-we-do Accessed July 1, 2017
[2] Kovarik, Bill. “A green Nixon doesn’t wash.” http://environmentalhistory.org/2013/01/07/nixon/  Accessed July 1, 2017
[3] Kovarik, Bill. “Environment used to be bipartisan.” http://environmentalhistory.org/2015/04/11/environment-used-to-be-bipartisan/  Accessed July 1, 2017
[4] Nosowitz, Dan. “Dow Chemical Asks Trump’s EPA To Disregard Government Studies That Indicate Its Pesticide is Dangerous.” http://modernfarmer.com/2017/04/dow-chemical-asks-trumps-epa-disregard-government-studies-indicate-pesticides-dangerous/ Accessed July 5, 2017
[5]  Nosowitz, Dan. “EPA Chief Met With Dow’s CEO Before Deciding Not to Ban Dow’s Dangerous Pesticide.” http://modernfarmer.com/2017/06/epa-chief-met-dows-ceo-deciding-not-ban-dows-dangerous-pesticide/ Accessed July 1, 2017.
[6] Lerner, Sharon. “Poison Fruit: Dow Chemical Wants Farmers to Keep Using a Pesticide Linked to Autism and ADHD.” https://theintercept.com/2017/01/14/dow-chemical-wants-farmers-to-keep-using-a-pesticide-linked-to-autism-and-adhd/  Accessed July 5, 2017
[7] https://www.epa.gov/node/19701 Accessed July 1, 2017
[8]  Environmental Data & Governance Initiative. “The EPA Under Siege,” https://100days.envirodatagov.org/epa-under-siege.html  Accessed July 5, 2017.
[9] Smith, Heather. “Trump Administration is the Greatest Threat the EPA Has Ever Faced.” http://www.sierraclub.org/sierra/trump-administration-greatest-threat-epa-has-ever-faced Accessed July 5, 2017.

Making, and Un-Making, Environmental Law: Earth Day’s Uncertain Dawn

By Karl Boyd Brooks, author of Before Earth Day; The Origins of American Environmental Law, 1945-1970

President Donald Trump is about as subtle as a claw hammer. Two weeks ago, he went to Environmental Protection Agency headquarters in Washington, D.C., to announce his disdain for nearly everything the agency had been doing during the Obama Administration. The presidential criticism amounted to a stunning rebuke of an agency that has, for over 45 years, earned solid marks from Americans for using law to safeguard their lives, communities, and future opportunities.

Presidents usually visit EPA to highlight some new initiative to take care of our environmental resources: the air, land, and water on which our lives, and our American prosperity and liberty, depend. President Trump went instead to lash the agency, demean its staff, and challenge the bipartisan legal legacy that has made Americans more prosperous and free by protecting their public health.  Picture the Trump/EPA moment as the President of the United States flashing his big, fat middle finger at the agency.

Those of us who have worked for EPA, and know first-hand about its people’s dedication and professionalism, found Trump’s symbolism telling:  there the president was — in the Rachel Carson Room, for gosh sakes — signing executive orders to speed up coal mining, roll back air quality protections, and undermine this nation’s signal effort to mitigate the grievous impacts of climate change. For good measure, President Trump paraded a handful of sheepish coal miners in front of his EPA ceremony to buttress his campaign pledge to “make coal great again.”

This month marks the 48th Earth Day. Throughout April, in events large and small, choreographed and spontaneous, Americans join their fellow passengers on Spaceship Earth to salute what Apollo 8’s astronauts, on Christmas Eve 1968, fondly called “our good earth.”  Now that the President of the United States has publicly trashed EPA, our premier environmental law enforcement agency, we should think a little harder about how our lives, our communities, and our legacy depend on environmental law.

EPA began in 1970. A very different kind of Republican president, Richard M. Nixon, created this new agency by welding pieces of other, older federal agencies into a single force combining environmental science, education, lawmaking, and enforcement. Of course, that was big news. And those were very different times than today. But we should widen our focus on EPA and 1970 a little to get the full story about the agency, to understand how radically disruptive and destructive President Trump’s environmental actions appear, and to appreciate how hard they will be to carry out. A little history about environmental law in America will put 1970 in perspective, situate EPA in a long and proud governmental tradition, and link today’s environmental challenges to those our grandparents faced after World War II.

A decade ago, I began writing Before Earth Day: The Origins of American Environmental Law. I wrote the book to answer a simple, but surprisingly elusive, question: where did American environmental law come from? I’d taught the subject at the University of Kansas (KU), to both undergrads and law students, for a number of years. I’d studied the American legal system and American environment systematically since beginning my history PhD work at KU in 1996.  And I’d spent much of my adult life working in and around law and the environment as a lawyer, elected legislator, and citizen activist in my home state of Idaho. And yet, despite some three decades of immersing myself in the challenges we create by living on this earth, I had no more clear idea about environmental law’s back-story than on the day I started law school in 1980.

Even if you’re not a lawyer, and even if you don’t put yourself in the “environmentalist” camp, you probably know a little about the famous federal laws that help keep us healthy and productive: the 1970 Clean Air Act, the 1972 Clean Water Act, and President Nixon’s 1970 pen-stroke that created the United Environmental Protection Agency. My book took a look at the “environmental decade” of the 1970s and found some important precursors to all those important laws. In fact, the more I looked into American environmental law’s “origin story,” the less I believed 1970 was the be-all end-all of the story. My book didn’t mean to diminish the hard-working, creative, and determined Americans who took up the fight against pollution and waste and injustice as the Seventies dawned. What Before Earth Day did is actually make those pioneers more traditional and less revolutionary, and their many accomplishments therefore more durable and defensible.

Law doesn’t just “happen.” Rules don’t appear spontaneously. Systems don’t come from nowhere. Environmental law, like environmentalism itself, emerged somewhat slowly after 1946. And like the ideas, imagery, and rhetoric of environmentalism, the principles and practices of environmental law have one foot planted in cautious tradition and one foot planted in bold reform. In fact, one reason why environmental law has stuck around so long is its very distinguished pedigree. Some of our most important environmental law principles date back to the early 20th century. Others emerged during the New Deal’s darkest days and the postwar era’s bright promise.

We should appreciate American environmental law for the careful, thoughtful, incremental advance it represents over the earliest American attitudes toward the natural world. At the origin of the American Republic, most laws encouraged people to own, use, and waste natural resources and systems. As late as 1900, few laws restrained factory-owners from pouring their waste into the air, water, and landscape. Even in the 1950s, government agencies – federal, state, and local – could plow a roadway through a wetland, or pour chemicals onto a forest, without telling neighbors, sharing the basis for their decision, or accepting constructive criticism. By 1970, though, even “Before Earth Day,” all those older ways of doing business (and damage) to the natural world had been replaced or substantially modified by the legal system we know today. President Trump may complain that dredging a wetland takes too long and emitting air pollutants has gotten too expensive. But that’s what environmental law has gained for us: breathing space, health benefits, and public participation.

President Trump and EPA Administrator Pruitt have announced drastic plans to shear off many key environmental law principles and to slash EPA’s capacity to make and enforce environmental law. What may restrain them as much as public outrage and business indifference (just check out how the energy industry has voted with its investment dollars against coal and for wind) is history and tradition. EPA may be only 47 years old, and it may have appeared when men tended their sideburns and women tottered on their platform shoes (not so different than today), but the underlying legal rules, principles, and precedents are far older. With roots that run so deep in American legal, cultural, and political soil, POTUS and Pruitt will find it harder than they imagine to tear up our environmental law system.

 

 

Karl Boyd Brooks is a Clinical Professor and Program Director, LBJ School of Public Affairs, University of Texas-Austin and former associate professor of history and environmental studies, and courtesy professor of law, University of Kansas; and U.S. Environmental Protection Agency Regional Administrator and acting Assistant Administrator