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THE PAST and FUTURE of ENVIRONMENTAL LAW Theodore L Garrett, Covington & Burling LLP Winner of the Who’S Who Legal Lifetime Achievement Award 2015

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THE PAST and FUTURE of ENVIRONMENTAL LAW Theodore L Garrett, Covington & Burling LLP Winner of the Who’S Who Legal Lifetime Achievement Award 2015 8 • ARTICLES WHO’S WHO LEGAL: ENVIRONMENT THE PAST AND FUTURE OF ENVIRONMENTAL LAW Theodore L Garrett, Covington & Burling LLP Winner of the Who’s Who Legal Lifetime Achievement Award 2015 Environmental law lies at the intersection light and weighed the electron. However, environment, such as the 1899 federal of science, law and public policy. Although I made a left turn in the middle of my Rivers and Harbors Act. But there was it is now an established and recognised college career and went to law school, no broad environmental movement and field, environmental law continues to after putting aside thoughts of business or no systematic, comprehensive body of evolve. Much has occurred in the 45 years medical school. But my personal interest federal environmental statutory law, since the US Environmental Protection in science remained and it has been an implementing regulations, corresponding Agency (EPA) was created in 1970. important part of my professional life. state plans and laws, and judicial decisions However, given the critical problem As an environmental lawyer, I spend that we now know as US environmental of global climate change, energy, the a great deal of time with engineers and l aw. environment and other challenges, the scientists, assessing how the statutory That was about to change. The first next 45 years will make it an equally and regulatory framework meshes with Earth Day took place on 22 April 1970. That moment marks what many consider the birth of the modern environmental movement. On that first occasion, 20 As an environmental lawyer, I spend a great deal of time million Americans took to the streets to demonstrate for a clean environment in with engineers and scientists, assessing how the statutory coast-to-coast rallies. Earth Day 1970 achieved a rare and regulatory framework meshes with technical issues political alignment: support from both Republicans and Democrats. As a result, and the client’s business objectives Congress passed the Clean Air Act and Clean Water Act in 1970 and 1972. Not sitting on its environmental laurels, Congress followed up by passing the exciting time to be an environmental technical issues and the client’s business Endangered Species Act of 1973, the Safe lawyer and to be involved in the forging objectives. I have explored offshore oil Drinking Water Act of 1974, the Resource of public policy and law on these issues. platforms, chemical and automobile Conservation and Recovery Act of 1976, Recently, someone asked me how I manufacturing plants; and I have worked and the Toxic Substances Control Act of came to practise environmental law on air and groundwater modelling and 1976. This spate of legislation culminated at Covington. The short answer is: wetlands mitigation plans, finding them with the enactment in 1980 of the serendipity. all important and gratifying to learn. A Superfund law. I came to Washington intending a lawyer needs to understand enough of the Clients began coming to us for short stay, serving as a Supreme Court science and engineering to ask probing advice and assistance on these matters. law clerk to Chief Justice Warren Burger. questions, to make sure that the client’s I was fortunate to be involved in some When my clerkship was ending, I told position is well founded, and to explain it significant and successful early lawsuits the Chief that I liked Washington and was simply and clearly to agency officials and/ under the Water and Air Acts. So as a new planning to join a firm here. He replied, or the courts. partner at Covington, I became the firm’s “Then you should go to Covington & When I attended law school, there environmental expert. Burling.” I followed that advice, wisely, was no course in environmental law. It Issues that are considered obvious and Covington has been my professional was not yet a field of law. That is not to and settled now were uncharted territory home ever since. say there were no antecedents. There in the 1970s. For example, we were I entered Yale College thinking of a were important writings, for example, involved in some of the first cases career in science or engineering, having those by Henry Thoreau, John Muir and challenging EPA approval of the first been fascinated with transistors and Rachel Carson, that inspired and presaged state plans implementing the Clean Air rockets in high school. At Yale, I enjoyed the emergence of the environmental Act. Once approved by the EPA, state courses such as “great experiments in movement. And there were some early implementation plans became subject to physics,” where we measured the speed of federal and state laws dealing with the enforcement by the Agency as well as EDITORIAL POLICY AND SELECTION CRITERIA: NOMINEES HAVE BEEN SELECTED BASED UPON COMPREHENSIVE, INDEPENDENT SURVEY WORK WITH BOTH GENERAL COUNSEL AND ENVIRONMENT LAWYERS IN PRIVATE PRACTICE WORLDWIDE. ONLY SPECIALISTS WHO HAVE MET INDEPENDENT INTERNATIONAL RESEARCH CRITERIA ARE LISTED www.whoswholegal.com ARTICLES • 9 citizens bringing suits in federal court. On assess the differences in harm resulting and better regulatory and/or technical behalf of Appalachian Power Company, from discharges into different kinds and solutions are needed and available. we took the position that, given these sizes of water bodies, and some of the For example, a major increase in oil enforcement consequences, the EPA’s quantities were below the limits allowed and gas production has occurred in the action to approve or disapprove a state in the Clean Water Act discharge permits United States due to the development plan should be subject to public notice that companies had received from the and use of hydraulic fracturing as a and comment under the Administrative EPA or states – thereby creating a conflict technique for producing more oil and gas from shale formations. This technological development has implications for both energy and the environment. From an energy perspective, increased production A major increase in oil and gas production has of low-cost natural gas has resulted in a shift from coal to natural gas, with occurred in the United States due to the development corresponding implications for air quality and climate change. However, low oil and use of hydraulic fracturing as a technique for prices could have an impact on US shale production. From an environmental producing more oil and gas from shale formations. perspective, hydraulic fracturing has resulted in a debate concerning the This technological development has implications for need for more regulation and the respective role of states and the federal both energy and the environment governments as well as the authority of local jurisdictions to ban or restrict such development. Low oil and gas prices could also make energy efficiency, renewable energy projects and nuclear power plants Procedure Act. The courts of appeals and potential enforcement liabilities. less economical. agreed, and such public procedures are We challenged these rules, and the US Uncertainty also results from now considered routine. District Court in Louisiana ruled that ambiguity and debate concerning Environmental issues are important the spill regulations were arbitrary and legal issues. For example, although the to the public at large. And they are issued an injunction against enforcement. modern version of the Clean Water important to our clients, who need The EPA filed a notice of appeal, but our Act statute has been on the books since assistance on compliance, transactions, discussions with the Agency gave rise 1972, there continues to be debate and and enforcement matters. I have had the to an innovated solution: the hazardous uncertainty over what waters are “waters opportunity to work on major federal and quantity regulations would stand but an of the United States” subject to the state environmental matters in the US exemption would be created for releases Act’s regulatory provisions for permits, and also on environmental matters abroad. subject to Clean Water Act discharge standards and enforcement. In Rapanos v Practising environmental law involves permits. A statutory amendment was United States (2006), Mr Rapanos was sued a continual learning experience and proposed by the EPA and passed as a by the government for filling in wetlands challenge, which makes it most interesting rider to an appropriations bill, with without a permit, and the Supreme Court and satisfying. the client’s support. The “Federally was confronted with issues concerning the The EPA occasionally struggles to Permitted Release” exemption became scope of jurisdiction over non-navigable deal with issues that do not neatly fit law under the Clean Water Act and was tributaries and adjacent wetlands. No within the statutes granting the EPA later incorporated into the Superfund view of the scope of Clean Water Act authority. One example relates to the EPA law. Needless to say, this was a gratifying jurisdiction commanded a majority regulation of spills of hazardous substances experience. of the Supreme Court. The plurality under Section 311 of the Clean Water Now a few words about the future. opinion by four justices would extend Act. The Act gave the EPA authority Environmental law is in flux because jurisdiction only to relatively permanent to establish regulations establishing new issues arise. They arise because bodies of water draining to traditionally quantities of substances that would be scientists, regulatory agencies and/ navigable waters and wetlands with a harmful if spilled or discharged to waters or legislators find impacts on human continuous surface connection to such of the US. The EPA’s initial regulations health and the environment that were water bodies. Justice Kennedy provided divided hazardous substances into five previously unknown, are more serious a fifth vote and expressed the view that categories, based on relative hazard, and than previously thought or occur at jurisdiction extends to non-navigable established quantities for each category.
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