2019: The Year in Review
“I will say for Earthjustice, we will remember 2019 as a year of phenomenal legal victories. In my 20 years here, I've never seen a winning streak quite like this one.”
This year, the courts were critical in holding the line against overreach. The Trump administration has ramped up its efforts to gut protections for the environment and our communities, but Earthjustice attorneys are holding them accountable to the law in case after case — and winning. And we’re not just playing defense: Across the country, we are making enormous strides forward in the states, as we help drive a transition to clean energy that the administration cannot stop.
In this conversation, held on Dec. 5, Earthjustice President Abigail Dillen discusses the incredible progress we’ve made over the past year, and the greatest challenges — and opportunities — we face. This briefing with Earthjustice supporters was moderated by Alison Cagle.
How will we remember 2019?
Well, I hope we will remember this year as the lead-up to a profound and necessary shift socially and politically, a year when very clear and present dangers to our democracy and very much to our planet became vivid enough to spur a breakthrough in public consciousness and civic engagement.
I will say for Earthjustice, we will remember 2019 as a year of phenomenal legal victories. In my 20 years here, I’ve never seen a winning streak quite like this one. In part, it’s a reflection of the Trump administration’s lawlessness. They are giving us great lawsuits to bring. I think it’s also a function of the extremity of the environmental threats that are in play now, and judges are sensitive to those because they are humans just as we are.
I am often asked whether we’re just winning the ‘easier cases’. Now, I will say I don’t think there’s ever an easy case against the federal government, but in the relatively easier cases where there were process failures. And we certainly have brought and won those cases. But I want to underscore, we are now reaching the core arguments over substance and we’re winning those arguments. Just let me name a few. And again, this is a very few of them but I think they’re illustrative of the kind of wins that we’ve been able to secure over the last year.
Attempt to Drill the Arctic and Atlantic — Nixed. In federal District Court in Alaska, we won a landmark ruling on an issue of first impression, that the president exceeded his constitutional powers in attempting to reopen the Arctic and Atlantic oceans to oil and gas drilling. And as a result, American drill rigs are not heading toward our fragile Arctic waters this summer.
Old-growth Timber Sale in Tongass National Forest — Halted. The Trump administration green-lighted the largest timber sale in 30 years in the ancient Tongass rainforest of Alaska. We won an injunction to stop it the day before the Forest Service was slated to take logging company bids. This is a decision that’s going to keep very, very old trees standing through the end of this administration.
Corporate Scheme to Sell Mojave Desert’s Water — Defeated. Before David Bernhardt — you will know him as our current Secretary of Interior — before he entered the administration, he was lobbying for the Cadiz pipeline. It’s a disastrous water project that would allow a speculator to dry out desert springs and the Mojave Trails National Monument to sell water to housing developments in Southern California. As soon as Bernhardt went into the administration, he tried to railroad approvals for Cadiz over the objections of line staff with the Bureau of Land Management. We won a resounding decision that has completely derailed the project for the foreseeable future.
Major Copper Mine on Ancestral Lands in Arizona — Halted. Open-pit, massive Rosemont copper mine was proposed on sacred lands that are also public lands in the Santa Rita Mountains of Arizona. The mine plans were premised on essentially a land grab under the 1872 Mining Act. We went to court on behalf of our client, the Tohono O'odham Nation and literally the day before bulldozers were going to roll through burial grounds, we won a game-changing decision that has stopped that mine.
Use of Entangling Nets in Vital Right Whale Habitat — Barred. And finally, for those who’ve been watching the plight of critically endangered right whales, you may know that since the 1990s, critically important waters off the New England coast have been closed to gillnetting, these walls of net that entrap whales and are the single number one cause of death for right whales.
The Trump administration wanted to reopen these waters to ground fishing and gillnetting. And last month we got a terrifically strong ruling striking that terrible idea down. And I mention it because it began with a quote from Melville, “There is no folly of the beasts of the earth which is not infinitely outdone by the madness of men.”
I mention this because it’s not the kind of thing you usually see in an opinion from the court. And I want to underscore that it’s not just that we’re winning, it’s how we’re winning. And I think we will come out of these four years not unscathed but having stopped the worst ideas and having made very strong laws that will serve us well into the future.
How will Trump’s judicial appointments affect our chances of winning in the future?
I think they’re good. Let me start by saying, there’s nothing that’s positive about appointing judges to lifetime appointments when they don’t believe in the role of government or regulation or access to justice. And those have been some of the hallmarks of the litmus test that Trump appointees have passed to become judges during the current administration. Elections have very long-lasting consequences sometimes and that’s nowhere more true than in the courts, and that should be top of mind for everyone as we head into 2020. The Trump administration is reshaping the courts, including the Supreme Court. And another four years of this trend would have very profound consequences.
That said, we’ve gotten some good and strong opinions from new Trump appointees in the courts. And I think it reflects the power of the independence of the federal judiciary. Judges are invested in the courts. There’s a check against abuses in other branches of government. They are invested in the rule of law. And I think we will continue to see the strong reaction against lawlessness that really characterizes the kinds of decisions that I was talking about earlier.
And I will say no matter what is next, we are really glad that we’ve been able to make big investments in our capacity to work in state courts and in other venues of all kinds; the public utility commissions which decide our energy future through a litigated process; local forums which are deciding where we can site big new fossil fuel projects and other damaging developments. So, the local and state counterweight to federal government is always important and we’re stronger in those venues than we’ve ever been.
And we’re also stronger than we've ever been in other rule-of-law countries abroad that are collectively shaping our global future — because as important as the United States is, we’re of course not the only country that’s shaping what the future holds.
What are the biggest legal fights we’ll face in 2020?
I’ll run through a quick list of issues that we should all be watching closely.
Clean Water: The decision in the Maui County [Supreme Court] case will be really important. There’s another huge Clean Water Act case working its way through the courts over the Clean Water Rule that the Obama administration completed in its second term. It’s a rule that really goes to the scope of the Clean Water Act and where it applies and our ability to protect ephemeral wetlands and streams. Extremely important in terms of where federal jurisdiction to prevent pollution and destructive development pertains. That will be coming up.
Clean Cars: Clean cars standards, the ability to regulate greenhouse gas from our transportation sector and the ability of the State of California and other states to go above and beyond what the federal government is willing to do; that’s a critical issue now. That will be heating up.
Mercury and Air Toxics: One of the rules that we were most invested in securing over the eight years of the Obama administration, and 10 years before that, were first-ever limits on toxic air pollutants, including mercury, from power plants, our biggest toxic polluters in the country. That rule has at its core a recognition that the toxics themselves have major impacts and that by controlling them, you’re able to control a whole swath of pollution that’s been killing Americans and making them sick for years. And that the benefits of that all justify strong regulations.
The Trump administration is really trying to upend how we think about the relative costs and benefits of pollution control. And the rules that they want to put forward would only really account for profit margins for major polluters, rather than the full benefits that you and I and everyone on this call accrue from pollution control. And so, though this is an important rule standing by itself, it’s really driven power plants around the country to have to finally clean up and, in many cases, shut down because they’re no longer competitive with clean energy. So, it’s an important rule standing alone, and this whole issue of how we account for the costs and benefits and protections is at stake as well.
Coal Ash: For years, we have been trying to rein in tremendous pollution around the country, again from power plants that burn coal. The legacy of coal plants is coal ash. And we have very old, increasingly unstable ash dams. You may remember, this time of year back in 2008, there was an enormous spill in Tennessee and we’ve see more and more of those since. One of the hard-won gains that we made in the Obama years was to finally get first-ever regulation of coal ash. All of those regulations are now in the crosshairs. We’ve had one really good ruling this past year, again in front of Trump appointees in the Fifth Circuit, but there are hard battles coming ahead.
National Monuments: Of course, for all of us who are watching the state of Bears Ears and other national monuments, that case will continue apace and we may well get a decision in the coming year.
Endangered Species Act & National Environmental Policy Act: Our bedrock tools, the Endangered Species Act (ESA), the National Environmental Policy Act, laws that force reasoned decision-making and stop the most egregious kind of development that imperils species at a time when we are in crisis — I mean, we really are in the thick of the sixth extinction, and we need the ESA more than ever. It’s unfortunately a time where the administration’s efforts to gut these laws are maturing and we will be very much at the heart of those battles in the coming year.
Tongass National Forest: We’ll also be fighting for Roadless Area protections in the Tongass, which I mentioned earlier.
The Arctic: And fighting over the Arctic. It’s a place that I think most Americans believe to their core should be off-limits to drilling but we’ll be fighting over that once again.
Zero Emissions and 100% Clean Energy: And I want to mention, I think, a threat that has gone too long under the radar. As the U.S. has become the biggest oil and gas producer in the world, we found ourselves with a glut of cheap gas and oil and it’s trying to find its way into every sector of our society, here at home and for export abroad. And so, even as we make headway pushing dirty coal plants out of our power sector, gas is rushing in. And we know that we have to be getting to 100% clean power so that we can electrify our homes, our transportation, our manufacturing, our business with clean electricity. That’s the way that we’re going to get to a carbon-free economy in the time that we have left to do that.
So, we’re fighting a zero-sum game right now between gas and clean energy. And we’re also seeing big companies like Exxon and Shell and multinational corporations seizing — I think they’re both seeing inevitable decrease in demand for fossil fuel energy. And their hedge is to invest more in petrochemicals, petrochemicals that are feedstock for plastics, of course, at a moment when we’re seeing the consequences of the plastics crisis in our oceans.
So, we are having huge fights over massive new petrochemical facilities that are being proposed in Appalachia and the Gulf States, Texas and Louisiana particularly. One I would advise everyone on the call to keep their eye on is a proposed Formosa plant in St. James Parish, Louisiana. How that site goes I think will be a bellwether for whether we can put the brakes on a massive rush to oil and gas infrastructure in this country that would have really cataclysmic impacts for both the climate and health of our communities.
How have the voices of supporters made a material difference in Earthjustice’s success?
We often ask you to use your voice. We send action alerts. We ask you to weigh in on issues that are of crucial importance, and you do it over and over again. I want to give a couple examples of responses to our calls to action that really made a difference.
Puget Sound Orcas: You all may have been following the plight of orcas off the Pacific coast. Bad famine years are really creating an existential crisis for orcas off of Puget Sound. We were able to ask you to support the breaching of the Snake River dams, so that we could increase Chinook salmon flows for starving orcas, and to address pollution and noise and oil spill risks that are really hammering that beleaguered population. As a result of our call to action, 17,000 letters were sent to Governor Jay Inslee, and that public pressure helped usher in $1.1 billion in aid recovery for endangered orcas.
Illinois Coal Ash Bill: Here’s one more: coal ash. So, I mentioned our long-standing work to try to rein in coal ash. No state has more dangerous coal ash dumps that need to be cleaned up and controlled than Illinois. We asked you to weigh in on state legislation. This is another great example of where states can come in and fill the vacuum that the federal government has left. We had 853 original letters sent to legislators in the state. They passed a landmark bill to deal with legacy coal ash, and we came back to you, and 900 more letters were sent to Governor Pritzker urging him to sign it. Politically, it wasn’t an easy call [for him]. He signed it. The bill is now enshrined in Illinois law, and it's a model for other states in governing toxic coal ash and getting cleanups done.
What more can supporters do to make their voices heard?
Get out to vote. And I hope that I’ve been able to convey some of the hope and courage that our successes are giving me. I’ll say it again. I think hopelessness and despair are our greatest enemy right now. So, I hope that you are getting the good news from us in your e-mail and on your social media accounts, and I hope that you’re spreading the word around because I think we all need to hear the good news and feel connected to the power that we do have.