For more than two decades, Earthjustice attorney Jim Pew has fought for clean air against dirty energy companies and ham-fisted government agencies.
In the spring of 2015, he's taking his fight all the way to the U.S. Supreme Court, which will decide in National Mining Association v. EPA whether power plants, collectively the worst polluters in the nation, must finally clean up their act.
Q. What led you to practice environmental law?
Growing up fishing and spending a lot of time outside always mattered to me a lot. I grew up in Pennsylvania and my family and I used to go up to the Poconos, which are probably best known for motels with heart-shaped bathtubs, but they also have amazing trout streams. My grandmother would often take me fishing. She was a very fierce fisherwoman, and because I lost so many of her lures, she made me learn to make them myself.
After practicing law for a few years, I took a bike ride through the Pacific Northwest to think about why I wanted to be a lawyer. If I was going to keep practicing law at all, I wanted to use my skills to do something that really mattered to me, and I realized that what mattered was protecting the environment.
Q. Are there clients who stick with you?
I've worked with a rancher in Texas, Sue Pope, who lives near several cement kilns in Midlothian, a town that bills itself as the cement capital of America. There are three plants close to Sue's ranch and one literally right next to the local elementary school. The pollution from the cement plants had taken a toll on her health, on her ranch and the cattle she raised and on the whole community.
Sue is a really dynamic and charming lady and a natural leader. She formed a group of neighbors called the Downwinders at Risk and fought back against the plants. But the odds were stacked against her: there were no federal limits on the toxic pollutants emitted from cement kilns at that time, even though federal law required them. It was a classic situation where advocacy in a state like Texas could only get her so far. Downwinders needed a lawyer to get the protection that federal law was supposed to provide.
Q. Tell me about the case before the Supreme Court.
This isn't a difficult case, and it shouldn't be in front of the Supreme Court. The question presented is whether EPA reasonably based its decision to control the toxic emissions from power plants on public health considerations and not the cost to industry. Power plants are the worst emitters of toxic pollution. They emit more mercury, chromium, lead—more of just about every toxic pollutant you can think of—than any other category of polluter. So, the question should be a no-brainer.
However, that doesn't mean that winning the case will be easy. It's unfortunate but true that this kind of case can be highly politicized, and EPA's important controls on power plants' toxic pollution have become a target for people who believe that all regulation is bad and that industrial polluters shouldn't have to spend money to control their pollution.
Q. How is it possible that the toxic emissions from power plants aren't already regulated?
The power industry has a lot of money to spend on lobbyists, and it has always had a lot of clout in Washington. When Congress updated the Clean Air Act in 1990, it put EPA on a tight schedule to limit toxic emissions from every other major source of pollution. Chemical plants, refineries, steel mills—every other industry was slated for rapid reductions and, by now, they've made those reductions. But power plants got a special deal that has allowed them to evade meeting the same requirements, until now.
Q. What will be the significance in either outcome?
There's huge practical significance. If the court leaves the EPA's rule in place, its benefits for public health will start next year. Thousands of people who would otherwise die prematurely from exposure to air pollution will get a reprieve. Fewer tons of mercury and other toxic pollutants will fall into our lakes and streams.
If the court throws out EPA's controls on power plants, it will set the whole process of controlling power plants' toxic pollution back years. Getting these controls in place has already taken decades, and the cost of delay has been between 4,200 and 11,000 lives per year and hundreds of tons of persistent toxic pollution pumped into the environment.
Q. What's your view of the EPA?
It's mixed. At every level, the agency has some good people whose hearts are in the right place. But all of them—good and bad alike—have come under a lot of pressure from industries whose pollution they're supposed to regulate. Industry groups constantly lobby them directly, lobby their bosses and lobby politicians to lean on the agency's political appointees.
That kind of heavy pressure—the vast majority of which goes against the agency's mission of protecting public health and the environment—takes a big toll on morale. That's another reason why it's important to defend the power plants rule, where after a lot of corralling, pushing and cajoling, EPA has done something to be proud of.
Q. What keeps you motivated to do this kind of difficult work?
It's not a steady stream of satisfaction, but that said I do think we're winning. These cases take a long time, but we're saving lives and cleaning up the planet. What could be more motivating?
The important thing I've learned is that you can't give up. It's clearly not an easy or quick process to change the way the government does anything, and it's difficult for outside groups like Earthjustice or our clients to change the way the government controls toxic pollution. It takes more than one lawsuit, and more than just lawsuits. We need partners and allies who will create public pressure and political pressure. And you need to be ready to stick with it.
Interview by Victoria Schlesinger.
Published in the Spring 2015 issue of the Earthjustice Quarterly Magazine.