Kagan pledges commitment to environmental law

BY JEREMY BLACHMAN

Last Thursday and Friday, the Law School hosted an environmental law conference, signifying Harvard’s stepped-up efforts to bolster environmental law at HLS. The highlight of the event was quite possibly Dean Kagan’s Friday lunch address, where she explicitly committed the Law School to hosting the environmental conference every two years. Kagan emphasized her hope that Harvard would become one of the nation’s premier centers of environmental law and scholarship. To that end, she has created a faculty hiring committee specifically focused on environmental law; three of the committee’s members – Todd Rakoff, Howell Jackson and Kip Viscusi – attended the entire Friday session.

But the must-see event of the conference was Thursday afternoon’s debate on the Bush administration’s environmental policies. An awful lot of law school events are not particularly captivating. Debates rarely involve real emotions, and it’s unusual to find a law-related conference event where it seems like it wouldn’t be impossible for there to emerge a fistfight. This debate, however, was the exception to the rule – and a truly compelling spectator event. The participants were Lynn Scarlett, the current Bush administration’s assistant secretary of the interior for policy, management and budget and John Leshy, former solicitor of the department of interior (and a visiting professor here next semester), along with three other leading environmental scholars.

Scarlett opened with a “view from 60,000 feet,” invoking conservationist Aldo Leopold and Rachel Carson’s 1962 book, Silent Spring, as inspiring the first Earth Day in 1970, and setting the stage for the creation of environmental statutes protecting our air, water and endangered species. She discussed how the Department of the Interior manages one-fifth of the acres in the U.S., which generate one-third of our nation’s energy, and how the department helps to irrigate farms providing 60% of our nation’s vegetables. Scarlett talked about “advancing a vision of citizen-stewards” to protect the environment, and engaging in “partnered problem solving.”

And then all hell broke loose. Prof. Leshy, responding: “The principle that explains the vast majority of decisions [by this administration]… is they ask ‘what does the industry want?’ That is the litmus test for decision after decision… and it is so different from administrations going back a century…. [They have] no genuine policy agenda other than that kind of gut-level preference.” Leshy attacked the current administration for announcing environment-related policies on Fridays and especially prior to holiday weekends, when the news will be less heard. “If you judge their environmental record by how many [Friday] announcements, you know they know [what they’re doing]… it would be comical if it weren’t so effective.”

Georgetown Law professor Lisa Heinzerling was even stronger in her response: “I think [for Assistant Secretary Scarlett] to invoke Aldo Leopold and Rachel Carson in a discussion of this administration’s policies, well, it takes the cake.” Heinzerling called the Bush administration “the most anti-environmental administration in the history of the nation, and [they refuse] to admit it… it leaves me longing for President Reagan.” Referring to an Aldo Leopold essay entitled, “Goose Music,” in which Leopold highlights the small miracles of nature like the sounds of geese, she said: “this administration never asks ‘what if there’s no more goose music?’… What if they’re wrong? They never ask that.” She closed her remarks by summing up the Bush environmental policies as based on “secrecy, fear of facts and favoritism toward industry.”

Scarlett responded to the criticisms of administration policy by saying that the claims “diverge from reality” and that the administration’s policies were really not all that different from those of administrations past. “Politics is a context that creates deep chasms,” she said, and “in that search for the deep divide it leads us to statements that are not nuanced and not careful.”

In that, Prof. Jonathan Adler of Case Western Reserve University agreed. He said that he did not believe that the Bush administration was the most anti-environmental ever, and in fact he thinks that not enough is being done to roll back outdated environmental regulations from 30 years ago. His concern, he said, was that on both sides of the debate, instead of talking about how to really improve the environment, the focus is on “just a few snowflakes.”

Prof. Simon Tay, currently visiting at HLS, was the final member of the panel. After joking that he felt like “an alien who has landed in the middle of warring tribes,” he offered a global perspective on the Bush administration’s policies and talked about how American influence has led instead to American exceptionalism, where we are seen as taking unilateral measures to protect hidden interests. The third world watches America, Tay said, and sees that perhaps it can get away with plundering its land like America does.

Assistant Secretary Scarlett closed the debate by saying that the administration is trying to get good results through cooperation instead of punishment. She drew an analogy to raising children: you want to get them to behave through encouragement and role modeling, although “of course sometimes you have to get out the sticks and punish… not with children, I don’t mean… my daughter will vouch that I never used sticks.”

Current Environmental Law Society president 2L Jamie Auslander said, of the debate, “Scarlett took a lot of flak from the other panelists for the Administration’s somewhat sketchy record on natural resource policy, but overall she did a good job in defending the administration’s position. It was nice to see the difference in philosophies between a Bush and Clinton official within the Interior Department, an agency that does not always receive much press or public attention.”

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Prior to the debate, Georgetown Law Professor Richard Lazarus spoke with students for an hour regarding the environmental cases on the Supreme Court’s docket this year. This year’s docket has a higher number of environmental cases than any in recent memory, Lazarus said. “[The solicitor general] doesn’t normally file so many environmental [certiorari] petitions. But every time I turn around, they’re filing another one,” Lazarus said. One of the cases to watch for: South Florida Waste Management District v. Miccosukee Tribe, about whether moving water from one wetland to another constitutes a “discharge” under the Clean Water Act.

After these two Thursday events, the conference continued on Friday with roundtable discussions of articles by some of the top scholars in the field. Eight professors from around the country introduced their recent works and took questions – sometimes tough questions – from their colleagues. Among the most well-received papers was a review, presented by Thomas McGarity of the University of Texas, of the Environmental Protection Agency’s failure to prevent the MTBE (methyl tertiary-butyl ether) groundwater crisis. UCLA Professor Jody Freeman’s article, an empirical study of dam approvals demonstrating the surprising importance of inter-agency lobbying, was also notable.

“That Harvard put the money and time into this conference is absolutely fantastic,” said 3L Chris Giovinazzo, Editor-in-Chief of the Harvard Environmental Law Review, which co-sponsored the event. “Harvard’s progress toward hiring environmental faculty and creating a real HLS environmental law program has really accelerated.”

Three-L James Gignac, former Environmental Law Society president and student co-chair of the conference (along with 2L Wil Gerard) said, “The conference was quite an exciting event for environmental law at HLS. It gave students the opportunity to interact with some of the top environmental law professors and scholars from across the country. We’re really fortunate that HLS committed the resources to producing the conference, which bodes extremely well for environmental
law here at Harvard.”

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