ELI GOLDEN ANNIVERSARY ISSUE ˜e Enironmental OUM · « Sive, Paget & Riesel PC « Skadden, Arps,...

The Environmental F O R U M

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NEPA at 50Why the Regulations Have Long Endured

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NOV-DEC 2019

Celebrating a Half Century

ELI GOLDEN ANNIVERSARY ISSUE

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THE DEBATETHE DEBATEi n p r i n t

A Look Forward to the Environment of 2069 — by Six Professionals Who May Still Be Active Then

When ELI and NEPA celebrate their centennial 50 years from now, what will the world look like? At the present, the out-look appears grim. According

to the IPCC’s latest report and the National Cli-mate Assessment put out by the Trump admin-istration last fall, long-term effects of climate change are already apparent in our weather patterns and are likely to worsen in coming de-cades. Ice caps are melting, the sea is rising, coral reefs are dying, and climactic shifts are affecting food and water security. Environmen-tal refugees are fleeing areas of drought, flood-ing, or fires, and vulnerable communities are already facing the first line of impacts from a changing climate. In 2069, The Environmental Forum could be reporting on conditions not ex-perienced during human history.

However, 50 years ago, the news was also grim. The events kicked off by the passage of the National Environmental Policy Act fueled an unprecedented worldwide campaign to pro-

tect natural resources and human health. Despite this response, actions have not

kept up with growing needs: air and water are cleaner in many places but pollution still kills millions, and many environmental problems have worsened when viewed on a global scale. Climate change and biodiversity collapse loom over this situation as newer issues that now dominate concern for the next few decades.

What will it take to build an environmen-tally sustainable future at the global, national, and local levels, and what can different sectors bring to the fight to save the planet? Where can we best use science, technology, law, and policy to curtail the most extreme effects of climate change?

We asked six accomplished young profes-sionals who will likely still be around in 2069, possibly even still active, to predict a different future, a more hopeful one — to show how the response to these threats to society, indeed perhaps to human survival, can be confronted and addressed successfully.

N OV E M B E R / D E C E M B E R 2 0 1 9 | 83Copyright © 2019, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, November/December 2019

Cory ConnollyManager

Michigan Clean Energy Leaders Project

“My simplest hope for the future is that we arrive at 2069 with a planet powered by clean, renewable energy in time to avoid catastrophic climate change.”

“The only way to create these solutions is to include people who have felt excluded from the environmental movement.”

Ariana Spawn Advocate for Healthy Oceans

Oceana

“Positive outcomes will result when we use a combination of public- and private-sector action, harnessing the power of both science and policy.”

Adenike AdeyeyeChief of Staff to Commissioner

Martha Guzman AcevesCalifornia Public Utilities Comm.

Joel Reschly Legal Counsel

Missouri Department of Natural Resources

“Governments should ensure continued public use of natural resources while making positive improvements in the daily lives of future generations.”

Nathan C. HoweEnvironment and Energy Attorney

McCarter & English LLP

“Storage can transform our power system’s distributed resources by facilitating peer-to-peer transactions as part of a community-based energy market.”

Achinthi VithanageVisiting Associate Professor of Law

George Washington University Law School

“By 2069, when NEPA is 100 years old, precaution will have assumed the default position in environmental decisionmaking.”


T H E D E B A T E

when wildfire risk is high, which can help prevent fires but also can create challenges for elderly people and those who rely on electricity to power medical devices.

As dire as things appear right now, we do have the power to turn this around. Appropriately framing the challenge is an important first step, and one in which my state has lessons for the rest of the country. California issued CalEnviroScreen in 2013 to help identify communi-ties that are facing the most severe environmental justice threats so that investments, programs, and poli-cies can be targeted to those most in need.

CalEnviroScreen scores commu-nities based on both environmental and socioeconomic factors. The Cli-mate Equity Plan, which was recent-ly introduced in Congress, would develop a similar scoring metric to assess how proposed legislation will impact frontline communities. The policy decisions that federal, state, and local governments make should be evaluated to make sure they ben-efit rather than harm frontline com-munities.

Another straightforward action to mitigate the effects of climate change is to enforce the laws we have on the books, like the Clean Air Act. Many of the sources of greenhouse gases also produce emissions that are regulated by the CAA as criteria pollutants, so reducing the latter produces cuts in the former. In ad-dition to reducing greenhouse gases, meeting the CAA’s requirements will reduce the rate of childhood asthma and other respiratory ailments and prevent heart attacks.

Beyond these initial steps, the best version of our future will require more bold policy proposals, like the Green New Deal, that address environmental issues with a focus on equity and justice. Succeeding in protecting our environment and ourselves from the effects of climate change requires that those develop-ing policy understand how intercon-

nected the issues are. Issues as dispa-rate as housing policy, immigration, economic stability, food security, and public health are all connected to climate change. Our solutions need to be as interconnected as are the problems.

The only way to create these solutions is to include people who have felt excluded from the environ-mental movement. We need to cre-ate the biggest, most inclusive tent possible. Environmental issues are popular — no one is ever going to say they love breathing dirty air. But the movement hasn’t always enjoyed the same level of popularity, in part because it has felt removed from many communities who love and care about the places they live, work, and play. Diversifying the entire sec-tor — from government agencies, to businesses, to nonprofits, to aca-demia — is critical for developing a movement strong enough to steer us toward the future we want.

We all can take steps to turn the most optimistic vision of the future into a reality. If we are in a room where decisions are being made without input from those most af-fected by the problem, we can insist on a more inclusive process. We can learn about the ways climate change connects to many other critical issues — economic inequality, immigra-tion, racial justice — and act as allies to those working on those issues. We can be bold and creative, with the knowledge that most people support the work we are doing. And, even if they don’t support the environment as a movement, everyone wants a world where they can breathe clean air and drink clean water. That pro-vides the portal we need to put in place the policies that will secure our future.

Adenike Adeyeye is Chief of Staff to Com-

missioner Martha Guzman Aceves at the

California Public Utilities Commission. The

opinions expressed are her own and do not

necessarily reflect the official policy or posi-

tion of the agency.

Steering Us Toward the Future

We All WantBy Adenike Adeyeye

When I envision the best-case scenario for fifty years from now, success

hinges on one thing: centering on those who have historically been marginalized and are thus most vulnerable. These frontline groups — low-income households, com-munities of color, elderly people, and others — are already facing the effects of climate change in ways that wealthier and whiter communities are not. Our collective survival will require addressing the challenges that many already face, not on behalf of but in partnership with those most impacted.

One look at the news — reports of extreme weather and rising green-house gas emissions — shows that the status quo is not working for any of us, and that is especially true for frontline communities. For example, people living in California’s Central Valley and Los Angeles Basin regu-larly breathe air that is hazardous to their health. Children, elderly people, and those with medical con-ditions suffer the most, with kids often forced indoors on dangerous air quality days. Many of the most polluted neighborhoods are commu-nities of color: studies have shown that people of color are more likely to live in areas with poor air quality, even when controlling for income.

Hotter, drier weather — tied to climate change — has increased risk of both drought and wildfire across the western United States. In California’s last drought, some low-income communities and com-munities of color in the San Joaquin Valley completely ran out of water. As wildfire risk increases across the West, California utilities have de-veloped programs to shut off power


T H E D E B A T E

Because It Is What the Problem

RequiresBy Cory Connolly

In 1969, when the National Envi-ronmental Policy Act was passed, my parents were busy protesting

the Vietnam War, the United States was sending a man to the moon, and my grandfather was working for General Motors in Flint, Michigan, in a plant long since demolished.

NEPA and the array of environ-mental policies and organizations created around that time have shaped my career, which today my grandfather would note with irony is focused on the move to electric cars and the adoption of clean en-ergy. My work underscores the chal-lenge that we have over the next 50 years, but it has also given me some optimism that we can find a way to build a clean energy future.

So, what will our world look like in 50 years? My simplest hope for the future is that we arrive at 2069 with a planet powered by clean, renewable energy in time to avoid catastrophic climate change. With that simple goal in mind, I am going to share a few positive trends I see in the clean energy industry today.

The first is technological innova-tion. Large-scale wind and solar is cost-competitive or cheaper than traditional fossil-fuel generation, such as coal or natural gas. Battery technology — which will be key in ensuring wind and solar can be fully integrated — is drawing unprec-edented investment and seeing pre-cipitous cost declines across a variety of applications. According to Bloom-berg New Energy Finance, lithium-ion battery prices have dropped by nearly 73 percent since 2013. And these trends extend across the clean energy sector.

The second is the growing de-mand for clean energy in the private

sector. According to the Renewable Energy Buyers Alliance, 63 percent of Fortune 100 companies have set targets to reduce greenhouse gas emissions and buy clean energy. Such commitments set the stage for future governmental action while helping reduce emissions.

Third is the growing popularity of clean energy. Polls, including one contracted by the Edison Electric Institute in 2018, point to growing public support for renewable energy. That trend is only getting stronger as prices come down, technology develops, and more large companies make high-level commitments.

These trends are reinforcing and they make for an exciting time in the clean energy industry as tech-nologies improve, markets develop, demand grows, and everyday people start supporting this transition.

Will it be enough? Battery costs are falling, but a recent study from MIT says that we need lithium-ion battery prices to drop far lower than where they are today to achieve wide-scale application. Large com-panies are buying renewables, but a report from Wood Mackenzie released in August reported that Fortune 1000 companies currently only source 5 percent of their power needs from clean energy. Public opinion is growing, but we still lack overarching federal policies to drive the transition that’s needed.

The problem that we face today — in my rough view of things — is that the gap between what is consid-ered realistic politically and econom-ically and what is required by the crisis at hand has grown untenable.

How can we close the gap be-tween what is “realistic” and what is required? I have been reading a book called Arsenal of Democracy, which helps illustrate this question a bit better. In the 1930s, well be-fore NEPA was passed, Michigan’s economy mobilized to build planes for World War II. Ford Motor Com-pany committed to building 30,000 planes — the number that was

considered necessary for the war ef-fort. At the time, the task was called impossible and unrealistic based on how things had always been done. Ford didn’t build 30,000 planes — rather the company built 100,000 planes. It is what the problem re-quired, not what was reasonable based on conventional standards.

How can we move toward solu-tions that truly address the problem and get us to 2069? How can we make sure that the trends I have outlined aren’t insufficient to meet the challenge at hand? We need to reevaluate our desired policy outcomes from a science-based understanding of what needs to be done and we need — like we had throughout the 1970s — policies like NEPA, the Clean Air Act, and others to get there. And then I hope we can go further.

In 1969, NEPA was passed and we landed on the moon. We were able to tackle real, immediate envi-ronmental challenges, but we were also capable of building momentum around an inspirational and aspira-tional agenda. If we replicate that, then in 50 years the planet and its people will be here, alive. Society will be powered by 100 percent clean energy and transported by electric vehicles. The world’s popula-tion will all have access to afford-able and reliable electricity and the wealth created by the clean energy transition won’t be concentrated in the hands of a few.

I’m not optimistic that we’ll be able to achieve such a world by 2069. I don’t think it’s very realistic, but we need to keep working toward it together because it is what is re-quired.

Cory Connolly is the manager of the Michi-

gan Clean Energy Leaders Project. The views

expressed in this article are his own and do

not necessarily reflect the position of the

organization.


T H E D E B A T E

surely increase. But some states are now tinkering with community ownership models, such as solar pro-grams that permit individual home-owners and businesses to own shares of energy produced by a community solar project on a subscription basis.

More ambitious legal constructs could encourage common owner-ship models at the neighborhood and municipal level. In this environ-ment, each energy community can be sized to fit the market as it devel-ops, investing and owning shared generation resources to achieve economies of scale, and allocating the power produced to individual members, who can then consume the energy, store it, or sell it.

One major hurdle to this market format is peak load management, which causes the value of energy over a daily timeframe to be ex-tremely volatile, and this issue is ex-acerbated by intermittent resources. The answer to this dilemma lies in energy storage — in vast amounts — from utility-scale storage hubs to home batteries. Home batteries could become as ubiquitous as the microwave, and utility-sized systems could be as prevalent as gas stations. With enough storage, timing issues of matching generation and load are eliminated, the demand curve flat-tens, and theoretically, the value of energy stabilizes to the point it can be predictably consumed or traded independent of the time of day.

In addition to individually owned storage systems, batteries and other forms of energy storage could also be scaled, owned, and managed by utilities, operating similar to a banking format, with energy itself acting as the currency. These storage utilities could essentially hold en-ergy accounts for all types of users, with service centers of all sizes and across various locations capable of performing a wide array of transac-tions. Account holders could make “deposits” by shipping excess energy across the grid when their battery is full, or “withdrawals” to their home

battery when it is running low. Or simply purchase and store energy for unpredictable future needs.

Of course, to make this overhaul possible would require extensive deconstruction of the regulatory framework that currently governs public utilities, effectively eliminat-ing the current tariff-based structure that governs retail service, and al-lowing complete open access to retail markets. This effort would be reminiscent of the revolutionary measures undertaken in the 1990s to deregulate both the transmission and retail energy markets. Similar to what occurred in that wave of dereg-ulation, the burden of stranded as-sets will also engender fierce debate.

New regulations will also be vital to supporting and sustaining this transformation, and to answer significant questions: Who would own and operate the distribution and transmission systems? Who would hold rights to install battery systems at key grid locations? How would consumers be protected from abusive sales practices and market manipulation? These are but a hand-ful of issues that would have to be confronted and addressed, and there would be few, if any, easy answers.

On the other hand, the idea of a decentralized energy market is no longer far-fetched, and if distrib-uted resources dominate the future landscape, it seems inevitable. It is remarkable how far energy storage technology has progressed in only the last ten years, and with another fifty years ahead, storage has the capability to transform our power marketplace to complement the pro-liferation of distributed resources, and facilitate peer-to-peer transac-tions as part of a community-based energy market.

Nathan C. Howe is an environment and en-

ergy attorney at McCarter & English LLP in

Newark, New Jersey.

Policy Can Foster Community-Based

Energy MarketsBy Nathan C. Howe

Today, we use batteries to power many of our most fundamental daily tasks,

from our phones to robotic vacuums and increasingly to electric vehicles. With the imminent rise of low-carbon distributed energy resources such as wind and solar close at hand, the case for batteries to power homes and the grid grows ever more compelling as a complementary resource capable of time-shifting loads and combatting intermittent shortfalls in production. Storage, in other words, is essential to deploying renewable energy to fight climate change and the pollutants that ac-company use of fossil fuels.

Fifty years from now — what if there was a battery powering every home? If there were battery systems as large and common as the baseload power plants of today? Truly stag-gering energy storage projections from various market research firms support this trend, at least in the near-term.

But if the energy sector shifts heavily to distributed generation resources, batteries could also be the key to unlocking a community-based marketplace, by fostering an environment where energy is owned and traded at an individual level, such as through peer-to-peer networks. In this redefined and dynamic market, utility-scale bat-teries could serve as “energy banks,” whereas home batteries are the wal-lets holding “cash on hand.”

Before discussing the critical role of storage, it is important to first consider what a community-orient-ed energy market composed primar-ily of distributed resources might look like. Individual ownership (such as solar roof systems) would


T H E D E B A T E

Do What Is Needed, Even What

Seems ImpossibleBy Joel Reschly

In 2069, government continues to play the most important role in solving the environmental prob-

lems of the past, present, and future. State and federal governments order cleanup or require significantly lim-ited exposure to past contamination, they regulate and enforce present environmental impacts, and they take action to improve the future environment and to reverse climate change.

Historical contamination has continued to be addressed with the polluter-pays framework established by the Comprehensive Environmen-tal Response, Compensation, and Liability Act. Even in an era with relatively little permitted pollution, governments still need to oversee re-sponses to past releases and have the authority to order cleanup or other appropriate actions.

Governments’ primary present-day environmental responsibilities remain through technology- and safety-driven command-and-control statutes that are predictable for regulated individuals and businesses to implement, yet flexible under changed conditions as determined by scientific results. The enduring command-and-control statutes of the 1970s — the Clean Air Act, the Clean Water Act, and, yes, the Endangered Species Act — have continued to provide a solid and necessary foundation.

As technology improved and standards increased, businesses adapted to achieve formerly impos-sible permitted pollutant limits. Those that could not adapt through technology or improved processes could offset excess pollution, often by performing robust mitigation projects or by purchasing credits

that fund third-party nonmandatory improvement projects with greater environmental benefits.

The above laws oriented toward the problems of the past and pres-ent are essential, and continue to be very successful in reducing pollution and protecting humans and the en-vironment. However, they were not intended to and were ultimately ill- equipped to address the problems of the future, particularly climate change. The one law that should have resulted in future-oriented and climate-aware decisionmaking, the National Environmental Policy Act, typically did not produce the best available outcomes for the en-vironment. Eventually, Americans demanded proactive laws that would create big gains toward reversing climate change. The political will of the country allowed nothing less than sudden, decisive action of a massive scale to preserve planet Earth for future generations.

This type of future-oriented law that compels government action has strong jurisprudential roots. An ancient Roman law, the public trust doctrine, codified the commonsense idea that the government has an obligation to maintain certain natu-ral resources for the benefit of all citizens. Legally speaking, it creates a judicially enforceable relationship in which state and federal govern-ments hold certain public resources as trustee for the use and enjoyment of the public and also, notably, for future generations.

The public trust has been rec-ognized throughout the American court system since the 19th century, requiring government agencies to preserve and proactively safeguard natural resources such as waterbod-ies, groundwater, and wildlife, in order to protect the public interests in collective uses such as navigation, commerce, and fishing. The doctrine mandates a certain result — protec-tion of the trust asset — rather than the means to achieve it, providing the necessary flexibility.

In 2069, Congress has codified the public trust in sweeping legisla-tion that required environmental reviews of all major projects, one of which was a massive effort to combat climate change. The result was a rejuvenated economy, which morphed into a true-cost model, where governments subsidize or tax most products and services based on all externalities and their true soci-etal benefit or cost.

The new law created millions of jobs designed to realize public bene-fits such as manufacturing solar cells and wind turbines, expanding smart grids and energy storage capabilities, constructing green infrastructure, improving public transportation, retrofitting public buildings, and replacing lead pipes.

The single largest budget item went to a new federal agency that coordinates with other world gov-ernments to rapidly implement projects of a previously unthink-able scope to reverse global climate change and protect humanity from severe weather events. These projects included planting over one trillion trees worldwide, sequestering over 100 gigatons of carbon, and pump-ing billions of gallons of desalinated ocean water to the ice caps.

Governments can and should ensure the continued public use of natural resources while creat-ing public- and private-sector jobs, promoting science, technology, and responsible business development, and making positive improvements in the daily lives of their citizens and future generations.

Joel Reschly is legal counsel at the Mis-

souri Department of Natural Resources. The

views expressed are his personal opinions

and do not necessarily reflect the official

policy or position of the agency.


T H E D E B A T ET H E D E B A T E

the state of the ocean today may seem grim, there are countless rea-sons for optimism about our ocean and our planet as we look ahead to 2069.

In the United States, in the last two decades alone, we’ve recovered more than forty fish stocks, and overexploitation of stocks is at an all-time low thanks to our strong fisheries management law. On coral reefs throughout the world, incred-ible scientific advances in our ability to grow and transplant coral frag-ments mean we can now restore dying reefs with more resilient, tem-perature-resistant corals. We’re also at the beginning of a green energy revolution, with much of that future renewable power slated to come from offshore wind facilities being carefully planned in U.S. waters.

And on the largest of scales — though addressing the climate crisis in the timeframe necessary to avoid catastrophic consequences is a daunting task — there are funda-mental governance changes on the horizon that I believe will tip the scales in favor of climate action. In 2015, the Financial Stability Board, an international body created after the 2008 financial crisis to monitor and provide recommendations about the global financial system, launched the Task Force on Climate-Related Financial Disclosures.

The TCFD was asked to pro-vide recommendations for how the world’s companies should assess and disclose the material risks that climate change poses to their bot-tom line, thus allowing investors to make more informed decisions. The TCFD issued its final recom-mendations in 2017, and since then shareholders of several major energy, utility, chemical, and tech-nology companies have filed dozens of resolutions to require disclosures according to the TCFD’s recom-mendations.

Many of us know intuitively that climate change will have monu-mental costs, both economic and

social. Some have even pointed to global warming as an example of why capitalist economic structures are inherently flawed. But regardless of your perspective, the economic costs of climate change must be formally recognized by the financial sector before the policy needle will move. And sure enough, in the wake of the TCFD recommendations and related shareholder resolutions, U.S. lawmakers in both chambers of Congress have introduced legislation and held committee hearings around the idea of requiring companies to publicly disclose the risks they face from a changing climate.

The world will be a very different place in 2069, but these are hearten-ing signs that we are marching in the right direction for our ocean and our planet. More promising still, the positive environmental outcomes described above represent a combi-nation of public- and private-sector action, harnessing the power of both science and policy. These institutions must continue to work together to keep shifting the needle on environ-mental governance in the United States and globally.

Perhaps my favorite sign of hope for our planet in 2069 comes from opinion polling. Americans in re-cord numbers are concerned about climate change and the overall state of the environment, and these trends are especially pronounced among members of my generation. Though polls can only tell us so much, these numbers herald a bright environmental future. And with our ongoing stewardship, the ocean — which has shaped our existence for millennia — will be there through it all.

Ariana Spawn advocates for healthy oceans

with Oceana. The views expressed are her

personal opinions and not necessarily those

of the organization, its funders, and its

board members.

A Bright Future for Our

Blue PlanetBy Ariana Spawn

We live on a blue planet. The ocean covers nearly three-quarters of the

Earth’s surface. The prevailing theory for the origin of life points to hydrothermal vents deep beneath the ocean’s surface as the home of the first single-celled organisms.

Today, nearly forty percent of the world’s population lives within sixty miles of a coastline. More than three billion people rely on seafood as a significant source of protein in their diet. And, perhaps most im-portantly, the ocean plays a central role in shaping our planet’s climate. Currents in the ocean drive weather patterns on land, making otherwise inhospitable geographies livable for humans.

Given the strong links between the ocean, the climate system, and our overall environment, it comes as no surprise that the seas have been steadfastly responding to human activities over the last two centuries. At present, one third of the world’s fisheries are overexploited, and pop-ulations of critically important spe-cies like sharks have sharply declined in many parts of the world.

Coral reefs, some of the most biodiverse habitats on the planet, are dying off so quickly that they could disappear by midcentury. The ocean has absorbed nearly all the excess heat caused by increasing concen-trations of greenhouse gases in the atmosphere. The impacts of this are clear: climate-related disasters are on the rise and marine fish and wildlife populations are shifting toward the poles.

Since the ocean has shaped both our past and our present, we should also look to the sea to answer ques-tions about our future. And while


T H E D E B A T E

Enough Risk — The Future Lies in

PrecautionBy Achinthi Vithanage

We live in a world of risk. Tossing up alternatives, favoring one in lieu

of another. Risk is the reason we have vaccines to protect us from diseases that ravaged past hu-man populations. Risk led to the nuclear energy electricity market and unfathomable deep-sea animal discoveries. Risk helped discover the universe and Earth’s minute existence within it.

Yet, risk can also be a menace. The industrial era revealed the con-sequences of diving into ventures without heed to environmental damage: polluted waterways, smog-enveloped cities, threatened species, and adverse health impacts. The beginning of the environmental era, however, sparked a new ap-proach to addressing environmental hazards: calculated risk-taking.

What happens when those cal-culations are based on incomplete information? This is the story of our times. Marketing, politics, unsupported science, and willful ignorance have obscured our ability to accurately assess risk. Dangers to our health, natural worlds, built environments, livelihoods, and well-being are increasingly based on data that are manipulated, ob-scured, biased, incomplete, or false. Ecosystem services are devalued (if valued at all), the social cost of carbon is barely considered, and climate change impacts are wan-tonly disregarded in decisionmak-ing. Data manipulation obscures our risk assessments, pushing us to endanger more.

What we are risking is not al-ways ours to risk, but another’s, or belonging to the collective society, or to future generations.

We are approaching a tipping point. Not in terms of environ-mental decline (as arguably we have passed that already) but in terms of societal mindset, largely owing to the persistence of environmental NGOs, ad-hoc state, city, and cor-porate proactivity, citizen activists, and several new generations of en-vironmentally aware youth taught by an equally aware generation of teachers. Meanwhile, more oil spills, more intense weather events, more Flint-like pollution scandals, and more food scarcity are awaken-ing the remaining masses.

By 2069, we will have seen a re-emergence of those international environmental law principles that today are being ignored. Indeed, we find the Global Pact for the Environment having already been codified in international environ-mental law. Principles demanding polluters to pay, non-regression, and the precautionary principle, once all points of staunch resis-tance, are now jus cogens — a peremptory norm. A right to a healthy environment is among those new norms, enjoying almost universal ratification, giving citi-zens recourse from local to district, state, national, regional, and inter-national courts.

Distrust in government will, in the long run, make way for new institutions of transparency and accountability. When we reach 2069, citizen science and investi-gation as a form of accountability will be widely accepted, due to technological advancement, court acceptance of its evidentiary value, and an independent environmental enforcement body dedicated to utilizing citizen science to support environmental prosecutions against government and industry. Headed by a publicly elected individual, qualified in law and science, this body will be funded by environ-mental damages paid by polluters, and tasked with engaging all the citizenry to monitor their environ-

ment and play an active role in its protection.

In a similar vein, heads of fed-eral, state, and local environmental government departments will no longer be at the whim of party politics, but elected by the citizens, having demonstrated sound knowl-edge and experience in both envi-ronmental science and law. In this future, law and science shall never be divorced from each other but remain consistent collaborators in the development of environmental research, law, and policy. In fact, half a century from now members of the judiciary will be required to undergo regular science training on emerging issues.

By 2069, precaution will have assumed the default position in environmental decisionmaking. Where there is a risk (any risk) of serious or irreversible damage, ac-tion will be required. Ecosystem services will be justly valued, and social costs realistically accounted for. No longer willfully ignorant of nature’s inability to heed anthro-pocentric boundaries, the world’s leaders (many of whom by now are of a younger demographic) will be tackling issues like climate change, biodiversity loss, and natural re-source depletion through holistic global solutions.

Fifty years hence, it is now uni-versal knowledge that a healthy, clean environment is the precursor to human health, wealth, and hap-piness. Every community lives and practices within this understanding, and the United States, along with many other nations, firmly believes that anything less is an affront to humanity.

Achinthi Vithanage is a visiting associate

professor of law and an environmental and

energy law fellow at George Washington

University Law School.

ELI GOLDEN ANNIVERSARY ISSUE ˜e Enironmental OUM · « Sive, Paget & Riesel PC « Skadden, Arps,...

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