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Hard questions, no easy answers at Earth Day forum

Jonathan Adler, Case Western University School of Law, Speaking at UB law School Earth Day forum.

Jonathan Adler of Case Western University School of Law, told forum attendees that the 1969 fire on the Cuyahoga River in Cleveland was both a symbol of how bad things could get and a symbol for environmental progress — rivers no longer routinely catch on fire. Photo: UB Law School

By ILENE FLEISCHMANN

Published May 15, 2014

“The more tools available for government and private agencies to ensure environmental protection, the more likely we will be to get environmental protection.”
Richard Lippes, adjunct professor
UB Law School

Who’s in charge here? An Earth Day forum on environmental protection asked that question, examining the role of governments and private groups in setting priorities and keeping our natural resources from destruction.

Sponsored by two student groups, the Environmental Law Society and the Federalist Society, the April 22 forum — “Environmental Protection: State, Federal and International Responsibility” — featured a panel moderated by Errol Meidinger, Margaret W. Wong Professor and director of the Baldy Center for Law & Social Policy.

On the panel were Jonathan Adler, Johan Verheij Memorial Professor of Law at the Case Western University School of Law and an expert in constitutional and environmental law; Jessica Owley, associate professor in the UB Law School, whose research centers around land conservation issues; and longtime environmental lawyer Richard J. Lippes ’69, an adjunct professor at the Law School.

Adler began by showing an iconic image from 1969 — Cleveland’s polluted Cuyahoga River on fire, an event that he said “really captured the public’s attention and catalyzed a lot of environmental concerns in the country.” One problem: The celebrated Time magazine image was from 1952, “when there was a real fire on the Cuyahoga.” Such fires were fairly common at midcentury, not only in Cleveland but in places like Philadelphia and Baltimore. Turns out, he said, “what happened in 1969 was not that a river finally got so polluted that it caught on fire, but that such a fire was so rare that it captured people’s attention. It was both a symbol for how bad things could get, as well as a symbol for environment progress, the fact that we now live in a time when rivers don’t catch on fire.”

That event, Adler said, pointed out the “standard fable” that federal regulation was a necessary response to the failure of states, localities and private organizations to address environmental concerns. “Actually, we were moving in the right direction before the federal government became involved,” he said.

He argued that the current problem is one of “jurisdictional mismatch,” in which the federal government takes on environmental questions that would be handled more effectively at the local level, even as it fails to take responsibility where it could be effective, such as in dealing with cross-boundary pollution problems. The result, he said, is inflexibility, poor prioritization of environmental needs and obstacles to environmental progress.

Local governments and private groups, Adler said, often are more effective because “knowledge tends to be local. Those who use the local watershed know far more about what’s going on in that watershed than someone hundreds or thousands of miles away. … Environmental protection is hard, and a lot of times when we try to protect the environment, we fail. We need to experiment and learn from those experiments. We actually find quite a bit of innovation when we allow different jurisdictions to do different things.”

Owley agreed that private organizations and governments that are close to the people — at the county, town or even neighborhood level — tend to know more about the land they’re intent on protecting. But even well-motivated private groups, she said, present difficulties.

For example, she said, private groups don’t have the same responsibility to be transparent and accountable as governments do. “When there’s a private agency making those decisions, there might not be a lot of eyes on it,” she said. “With a public agency, if we don’t like what they do, we can sue or we can vote with our feet. We don’t have those options with private actors.”

A fundamental issue, she said, is how to decide what’s appropriate for private groups to take on and what’s more appropriately a government function. If land conservation is generally agreed to be a public good, she said, “we need to ask whether it’s appropriate for the federal government to take that on.”

“My view is that none of this is either/or,” Lippes said. “The more tools available for government and private agencies to ensure environmental protection, the more likely we will be to get environmental protection.”

He noted that the practice of politics plays a major part in how well we fare in protecting the land, air and water. For example, he said, enforcement of the Clean Water Act has varied greatly from state to state, depending on whether the political majority tilts toward economic development or environmental protection. Private organizations can step in to fill that gap; for example, by reviewing companies’ discharge-monitoring reports to check for violations. But some Midwestern states, he said, don’t welcome such private activism. “The fact is,” he said, “that you need protection on all levels.”

Lippes also sounded an alarm on hydrofracking for natural gas, which has been a major point of contention in communities lying atop the Marcellus Shale in New York and Pennsylvania. “We are facing major issues of environmental damage, perhaps greater than any in my career, and that comes from the lawyer who handled the Love Canal case,” he said. “There has been nothing to the extent of what could destroy our cultural heritage through fracking.”

In the Southern Tier of New York, he said, 10,000 fracking wells have been proposed, covering about 30 acres each, along with the infrastructure to transport the gas to market. Noting that the state’s top two industries are agriculture and tourism, he said, “You’re going to change the Southern Tier to an industrial zone. I’m not even talking about the problems of water pollution; I’m just talking about the aesthetic damage.

“These are hard issues. They need careful thought, they need imagination and, ultimately, they need an enlightened public.”