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Science, Law & the Environment Emerging Topics in Environmental Law

Happy 41st Earth Day!

Posted in Climate Change, Legislation

I no more wrote that title than I “heard” voices shouting, “What’s happy about it?” “Why would you even be pointing out that it’s Earth Day?” “Isn’t the earth going to the dogs and how can it be happy?” Or something like that.

But for me this is a particularly reflective Earth Day. The first Earth Day was 41 years ago – at the height of the Vietnam War. Most of the major federal environmental legislation had not been passed yet. The National Environmental Policy Act (NEPA) had been passed in 1969, but the Endangered Species Act was still three years in the future, CERCLA (Superfund) was ten years in the future, FIFRA (regulating pesticides) was three years in the future, the Clean Water Act amendments that gave it teeth were four years in the future. Smokestack industries belched smoke, but quite apart from smokestack industries, lots of businesses routinely dumped chemicals that we now know contaminate water sources, simply because that is how it had always been done. People filled wetlands and called it “reclamation.” And automobiles got 9 miles to the gallon – which was fine because gas cost maybe 15 cents a gallon.

In the intervening 41 years, a lot has changed. Many of the sites on Superfund’s National Priorities List have been cleaned up. At least as important, businesses that initially were dumbfounded that they could have incurred liability for cleaning up toxic chemicals that no one had ever thought twice about before, have learned to not pollute, and to recycle. The nation’s waters are cleaner – and far cleaner than most other nations’ waters. The air is cleaner. If species continue to be threatened, huge areas of public land have been set aside primarily for their protection. Many of the issues that motivated the first Earth Day are considerably improved.

On the other hand – as the issues in our immediate field of vision, like rivers catching fire and eagles disappearing, have been resolved, we increasingly see the next horizon of issues, which tend to be larger and harder to address. Global climate change. The increasing risk to the oceans. The fact that our primary energy sources – oil, natural gas and coal – are finite and as we consume more and more of them, securing an adequate supply presents increasing risks. Those aren’t issues that anyone thought of in 1970, but today we recognize them as potentially more threatening to our core objectives than the issues we have dealt with. And today we find ourselves with little apparent political will for the sort of sweeping legislative change that followed the first Earth Day. There is no appetite for more government.

So it could be a time to be discouraged. But I am not.

Next month I get to go to Cambridge, Massachusetts to watch my daughter graduate from Harvard Law School. Her goal is to spend her career as an environmental lawyer – to go solve those problems. (I have told her that the good news is that my generation has left plenty of environmental issues for her generation to resolve.)

Last night I read her final paper, in which she argues that a program of energy efficiency education in high schools, with the home energy equivalent of a National Science Fair competition, could be a cost-effective way to reduce the 21% of our energy use that goes to the residential sector enough to meet 2050 carbon targets in that sector. Will it happen? Probably not. Does that matter? No. Because the important thing is that while the political process seems to be stalemated at the moment, a new generation of educated, passionate environmentalists is rising to the challenge. Some will be like my daughter – fighting to put the environmental consequences of our decision in the primary place for decision-makers.. Some will represent the business world and will help figure out how to address the challenges while maintaining our economy and economic opportunity for all Americans. Regardless, they will battle through those issues. When Earth Day is 82 years old, the problems won’t all be solved. But the then-aging warriors of the next generation will, as the last generation has, be able to look at the changes over their careers and say, “we haven’t gotten everywhere we wanted to, but we’ve done some good.

So, Happy Earth Day.