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Insider Briefing

After the Elections, What Comes Next?

“Despite widespread voter suppression, gerrymandering, and outright racist attacks against candidates, voters made history on Nov. 6 in several inspiring and significant ways.”

The overall outcome of the 2018 midterm election is a win for the earth and its people. The new makeup of the House of Representatives allows for Congressional oversight to expose the Trump administration’s assaults on human and environmental rights. State-level changes also open up new avenues for environmental progress. But this is not a time for complacency. Earthjustice and its supporters have done a great job pushing back on attacks to the environment and we must keep it up because it still matters.

In this conversation, held on Nov. 15, Earthjustice Policy & Legislative staff members Marty Hayden and Jessica Ennis discuss the results of the election and what they mean for our environment, our health, and the future of our planet. This briefing with Earthjustice supporters was moderated by Keith Rushing.

Martin Hayden
Martin Hayden Vice President, Policy & Legislation
Jessica Ennis.
Jessica Ennis Legislative Director, Climate & Energy
Keith Rushing.
Keith Rushing National Media Strategist

Conversation Highlights

Introduction

Keith Rushing:

With the effects of climate change being felt around the globe and with corporate money playing an ever-larger role in politics and policy, November’s midterm election represented a critical moment for the environment and for the many battles we’re fighting. You might be wondering what these results mean. What can you do to make your voice heard?

We have Jessica Ennis, Legislative Director for Climate and Energy and Marty Hayden, Vice President of Policy and Legislation.

As you all know Democrats took control of the House of Representatives and Republicans maintained their control of the Senate. There were several critical governors races, state legislative races that will have an impact on American policy for years to come.

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Can you tell us your top takeaways from the midterm election results as it relates to our work and priorities here at Earthjustice?

Marty Hayden:

The first is that we are going from staunch opponents to environmental champions when it comes to who chairs the House committees that have jurisdiction over our environment and public health. I’ll give two examples.

Representative Nita Lowey of New York is now going to become the chair of the House Appropriations Committee. For years, one of the biggest threats we faced annually has been anti-environmental riders, which are provisions that either block or weaken environmental safeguards or laws that are slipped into must-pass spending bills. As the top Democrat on the Appropriations Committee on the minority, Representative Lowey has been a champion in fighting these poison-pill riders and particularly this last year, went to bat to save wolves which the House and Senate were trying to delist. As Chair of the House Appropriations Committee, it’s a good bet that all the House bills — which is where most of the riders came from — will be free of new anti-environmental riders. The person who would have been the chair of the Appropriations Committee if the Republicans had won was Representative Aderholt of Alabama who had a League of Conservation Voters Scorecard score of 0 percent last year and 4 percent lifetime compared to Representative Lowey who had 100 percent last year and 94 percent lifetime. And that’s the case down the line for these new committee chairs.

The other chair I would highlight is Representative Raúl Grijalva of Arizona who’s going to be taking over the House Natural Resources Committee. Mr. Grijalva similarly was a 100 percenter last year. The person he’s replacing was a particular nemesis of ours, Representative Rob Bishop of Utah who had zero percent last year. Bishop was the driver of President Trump’s shrinking of both Bears Ears and Grand Staircase-Escalante’s National Monuments. This leads to my takeaway number two. With champs in charge of these committees, we’re going to have oversight of the Trump administration, oversight of the bad things they have been doing that haven’t been getting attention under a Republican House or Senate. I can guarantee you that one of the first things that Representative Grijalva will likely dig into are those two monuments.

Other things that are of particular importance to Earthjustice, that we expect to see oversight on, is the Trump administration is currently in the process of weakening the rules that govern the implementation of the Endangered Species Act — to make it harder to list species and easier to take Endangered Species Act protections away. Mr. Grijalva has been a long-time champion of the Endangered Species Act.

The other one, which gets less public attention but is critical, is the Trump administration, right now, is in the process of rewriting the rules that govern and implement the National Environmental Policy Act. This is the law that allows citizens to participate in decision-making by the federal government and be informed of what kind of impacts the different decisions could have. To have oversight on the Trump administration in this area is huge.

The third takeaway I’d add is, this is an incredible group of incoming freshmen members of Congress that got elected this time. I got to go to a breakfast with a few of these member-elects and they are very impressive. I want to call out three who were there that I got to meet and spend time with.

The first is Mike Levin from Southern California who is a clean energy industry executive and is totally committed to moving forward on clean energy and fighting climate change in his new role as a congressman. Another is Lauren Underwood of Illinois who is a lifetime public health professional and nurse. She is very focused on protecting our most at-risk communities. The third was Representative Xochitl Torres Small who’s a clean water lawyer from New Mexico. All of them were so incredibly impressive. And Alexandria Ocasio-Cortez, the organizer who has already been pushing the envelope on making progress in lots of areas.

So I’m very excited about this new class of freshmen coming in and I think that’s going to help bolster things in the House as well.

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Jessica Ennis:

First, the Energy and Commerce Committee, we expect that Congressman Frank Pallone, Jr. will be the chair of this committee and his oversight agenda will include the Trump administration’s proposed coal bailout. Trump’s Department of Energy has been attempting to keep uneconomic coal plants running at the expense of clean energy which is increasingly cost competitive in electricity markets. The proposal that the Department of Energy started with would have changed the way wholesale electricity markets work in the US. To date, these attempts have been rejected however we don’t expect them to end. This is what we anticipate being one of the top oversight priorities for the Energy and Commerce Committee. They’ll now have the ability to bring Department of Energy officials over and ask them questions and we’ll better learn how the decision-making process has been happening over at the Department of Energy.

In addition to the Energy and Commerce Committee’s work on energy, there is also expected to be a check of the Trump Environmental Protection Agency’s (EPA’s) unprecedented attacks on science and public health protection. These committees are now being helmed by members who are committed to protecting and implementing the Clean Air Act and other important public health laws.

Under Trump and EPA Administrator Andrew Wheeler’s watch, we’ve seen an all-out assault on EPA’s core mission to protect our public health. This new Democratic House will bring much-needed scrutiny to both Trump’s appointment of industry insiders and his attempts to undermine science and the role of law.

One example, the Mercury and Air Toxics Rule for power plants was finalized in 2011. This rule saves 11,000 lives per year and compliance is at nearly 100%. Trump’s EPA has taken its first steps to rollback this critical rule. Energy and Commerce is poised to be a firm check on these attacks and we look forward to seeing their oversight agendas.

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Can you explain the work of Earthjustice’s Policy and Legislation team and tell us more about what kinds of challenges we expect to face under this reshaped Congress?

Marty Hayden:

Earthjustice created the Policy and Legislation Department back in 1990. Our fundamental mission has largely been the same since and that’s to protect our cases and defend the laws on which they’re brought. When our lawyers win a big case — often Congress doesn’t applaud, but tries to overturn it. This was going to continue to be true in the Senate.

In better political times, we push for stronger federal safeguards and laws to protect our environment and our communities. This coming year, our attorneys will still be running defense in the Senate and with the administration. The number one challenge — thinking of the Senate — is judicial and administrative nominations. The filibuster — the ability to require 60 votes in order to get either of these nominations — no longer exists in the Senate, which means it’s a simple majority vote. Because the Senates have won more seats, they will not only have a couple more votes on the floor but they’ll probably end up getting one more seat on every committee. That means the margins within the committee will now be a two-vote margin. This is particularly key for the Judiciary Committee where all the judicial nominations come out of.

Last year there were 84 judges of all levels confirmed. There were five nominations that were withdrawn and most of those were because a Republican on the Judiciary Committee had a problem — which would’ve meant a defeat had it gone forward. Now, that’s going to be even harder and there’s no way to sugarcoat that.

The other challenge is going to be the Senate trying to add bad things into a larger bill because they think it is a must-pass bill. One that’s going to be coming along fairly early in the new Congress is an infrastructure bill. While this provides a fair amount of opportunity, it also provides some risk — particularly out of the administration. Based on the proposal they put out last year, their vision is primarily to streamline and waive environmental laws that apply to infrastructure like the National Environmental Policy Act, the Clean Water Act, or the Endangered Species Act. That’ll be something we’ll be having to both guard against and fight if it shows up.

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How will election results affect Earthjustice’s strategy to promote clean energy at the state level?

Jessica Ennis:

For years our litigators have been engaged in regulatory agencies and states specifically on clean energy. In the past we’ve paired this work — for example in Maryland — with legislative work. We worked to pass a community solar bill that increased access to clean energy to all Marylanders. This pairs well with our commission work on clean energy. We’re looking for more opportunities to do that as a result of all the places where legislative chambers flipped. Some highlights that we’re looking at include Nevada, Colorado, and New Mexico.

In places like New Jersey, after the governor mansion flipped last year, the state took great action on clean energy. They passed a big clean energy bill including some important provisions on community solar that increased solar access to all residents of the state. We’re hoping to see some similar movement in these other states that have new leadership.

In states with divided control, we have seen some of the margin between the parties become slimmer. In Pennsylvania — where both the House and the Senate are led by Republicans but the governor mansion is held by Tom Wolf, who’s a Democrat — we’ve been working on some clean energy legislation and we look forward to continuing that work.

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How could the results of the election create positive change from an environmental standpoint? What does this mean for Earthjustice?

Jessica Ennis:

This was a big wave election. It’s been hard to keep that perspective because the results keep coming in. Democrats picked up more seats than they have since Watergate. Many of these new representatives at all levels of government are big clean energy and environmental champions, who care a lot about the issues that Earthjustice and our supporters care about.

We’ve been holding the administration accountable in court. We filed more than 100 cases challenging the Trump administration’s rollbacks to key environmental health protections. We have a really great winning record to date. Some of the greatest news out of the election is that we’ll be able to hang onto these court victories more easily with the House being in democratic control. We’re in a better position than we have been in a long time to defend our victories.

There has also been a backlog of environmental bills run through the House, so we expect that we’ll be able to use the next couple of years to work with House democrats and work on clean energy legislation. We’ve seen energy efficiency legislation. There are tons of opportunities that we’ll be looking to pursue over the next couple years. I think Abbie Dillen summed it up really well the day after the election, climate change is no longer a hoax in the House of Representatives.

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Is anyone crafting or spearheading legislation at the national level to invest in or tackle the other critical elements of climate change?

Jessica Ennis:

You’ve seen us working at all levels of government and in all different types of venues to combat climate change. With multiple chambers in state legislatures flipping, it’s a great time for these places where the voters really spoke to see action on climate and energy issues. We expect to see new legislation coming out of all of those venues. We think that the House will be working on climate and energy issues but the states are where a lot of the action has been, given the void in the White House on taking action on climate.

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How are we going to utilize a democratic majority in the House to help protect our national treasures in Alaska?

Jessica Ennis:

For years, there have been champions in Congress working towards protecting the Arctic Refuge. This is one where Congressman Raúl Grijalva is expected to take a leading role in finding out exactly what the Trump administration has been up to in their attempts to open up the refuge for oil drilling. Expect to see lots of documents coming out of the Department of the Interior that we wouldn’t have seen otherwise and more scrutiny over what the Interior is doing. There’s been a vote to permanently protect the refuge that’s been introduced multiple times in the past and we expect to see that bill be introduced again.

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What is Earthjustice doing about the threats to the Endangered Species Act and in particular the legislation in the House to be voted on on wolves?

Marty Hayden:

Our endangered species lobbyist — our Legislative Director of Lands, Wildlife, and Oceans — Marjorie Mulhall is working on that right now. We have been doing a lot of work on it — lining up the votes against it, helping the House Natural Resources Committee and House leadership in their whip counts — figuring out where people are and phone-banking the bill. Our goal is to minimize the democratic defections, to hold that number down to the single digit. The bill is to delist all wolves in the lower 48 and we think the House leadership is using that on the floor to try to push for the wolf riders in the end of the appropriations process when the current short-term spending bill runs out on December 7. We want to position ourselves in the best place possible to fend off those riders. So far we’ve fended those off for several years and I expect to be successful again.

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What is the status of Trump’s attempts to downsize national monuments specifically Bears Ears and Grand Staircase-Escalante?

Marty Hayden:

Trump has already taken the action to downsize them. We are in court on both of those so they are going forward. Success on that means us winning in court and rolling that decision back — showing he didn’t have the legal authority to shrink national monuments. With Representative Grijalva taking over House Natural Resources Committee, he’s going to be all over those monuments because that’s something he cares very much about.

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For those who live in California — is it better to focus on local state pressure or on national level activism?

Marty Hayden:

I would say both. You’ve got some very key people at the national level in California. Senator Feinstein’s the top Democrat on the Judiciary Committee so being in touch with her about judicial nominations is important.

The House members are now in a position to do something so being in touch with your members of the House in California and everywhere else to urge them to make forward progress on climate change, on clean energy, on clean water, and on clean-air — particularly to hold the Trump administration accountable. I would put out a special plea to be in touch with these newly elected members because I do think there are some real stars in that group. For them to feel that their constituents are supporting them going forward would be a great thing.

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Jessica Ennis:

I’d like to add — we’ve seen how effective it is when people do call their numbers. That’s the way that some of the large rollbacks were prevented during the last two years in Congress. People who are representing you, care about what you think, so keep making those phone calls, keep sending those emails, and interacting with your elected officials on social media. That’s a key way that they can keep their finger on the pulse of what’s happening in their districts and it’s a great way to keep the issues that you care about on the top of their radar.

For the question about local, state, or national — they’re all important but especially as we hope to see some momentum on clean energy and climate issues in states that have new elected officials representing them. Tell them what you’d like to see. They’ll be working on their agendas for the next couple months before your legislatures come into session. Now’s a really great time to let people know what you’re thinking about.

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Marty Hayden:

One more thing. When your members of Congress have town halls, go. To be able to go and see them in person is really impactful. I guarantee you, particularly these newly elected members will have several of those in their districts.

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How will our lawsuits be affected by the packing of the courts that has taken place in the last two years? How do we stop further assaults on our environment?

Marty Hayden:

The different courts that we operate in are going to be affected to different degrees based on how many vacancies there are. Some venues are definitely going to get tougher but we’ve been here before. We had eight years of the George W. Bush administration putting conservative judges on the bench and we’re still winning cases. That hasn’t stopped us.

As bad as the people Trump is putting on are, it doesn’t mean we’re not going to be able to win cases. Yes, it’s going to get harder in some venues but we have darn good lawyers and they generally find a way to win even when they’re in front of a difficult panel. I have a lot of faith in our lawyers. The judicial nominations is the one thing that we really didn’t get a better situation on. It got a little worse but it wasn’t that good in the last Congress. While there’s not a lot we can do to keep new nominations from becoming judges as long as Trump is president and the Senate is under Republican control, our lawyers have always had a great talent for finding ways to win.

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What is your take on the governors races? What do the results mean for the states leading the charge on clean energy and climate?

Jessica Ennis:

I was really excited to see the results. There were at least seven new governors elected who took pledges to increase clean energy in their state. These people — like former Congressman Jared Polis who’s now going to be the governor of Colorado — he’s been a key ally this whole time in Congress on issues like cleaning up the oil and gas industry but also looking at clean energy.

We also saw people like Gretchen Whitmer be elected in Michigan who has said publicly that she wants to see Michigan increase its clean energy. Across the board, we saw tons of new people elected who took pledges throughout their campaign to move their states towards a larger percentages of clean energy on the grid and that was a great story from election night.

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What can individuals do to make a difference in communities that were directly affected by fracking and oil and gas drilling?

Jessica Ennis:

Now that the House has flipped again, there are a number of pieces of legislation that have been introduced in the past to remove exemptions that the oil and gas industry has from key environmental laws like the Safe Drinking Water Act and the Clean Air Act. I think it would be a great time to talk to your members and tell them that you want them to support removing these loopholes.

I think it’s a great time to be working on air emission issues. We’ve seen both the EPA and the Bureau of Land Management take action during the Obama administration to reduce both methane pollution as well as other air toxics pollution coming from oil and gas. As the Trump administration has tried to roll those critical rules back, we’ve been challenging those rollbacks every step of the way in court and we’ve been winning.

At the same time we’ve seen states start to take more action. We expect potential action on methane in New Mexico next year. So if you live in a state with a lot of oil and gas development and you don’t have rules on the books, talk to your members. Talk to your new governor — if you have a new governor — about taking action to reduce this pollution.

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How much has climate change affected the droughts in California and contributed to the numerous fires?

Marty Hayden:

Scientists believe that climate change has been a very significant factor in the droughts in California which have led to the high fire risk conditions of the forest out there. It’s a primary driver behind what has been happening, not just in California but elsewhere in the country too.

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How can we ensure that outgoing congressional representatives are still being held accountable in the remaining days of their current roles?

Marty Hayden:

Their time on the job is this week and then about three more weeks after Thanksgiving. First, check and see if they are showing up there. You can go online and pull up votes that happened in the House floor and see whether or not your representative voted. If they haven’t, you can call their office and ask where they are.

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Is Earthjustice going to defend California’s waiver under the Clean Air Act?

Marty Hayden:

If this is in regards to California’s waiver to have higher fuel efficiency standards for their automobiles than the rest of the country and the other states that have joined with California over the years — Trump hasn’t taken the actual waiver away yet. But the day he makes a move to do that we, as well all the states involved, will sue him. And we, and the same states, have also litigated Trump’s efforts to roll back the broader federal standard, not the California waiver, for the years 2020 to 2025, and we’re in court on that right now. We are heavily invested in bringing the fight on the California waiver if that is where he ends up going.

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Where we can find a list of elected representatives and the issues that we should be contacting them about?

Jessica Ennis:

If you go to congress.gov, you can see who your elected officials are by typing in your address. As to the issues — people are very responsive when you talk about the issues that you care about. I say call and if you care about climate, talk to them about climate. If you care about access to clean energy, talk to them about that. If you care about national monuments talk to them about that.

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Marty Hayden:

You can also sign up for Earthjustice’s action alerts. We put them out quite frequently when bills that we’re working on are coming to the House or Senate floor. Those alerts give you all the information you need and give you an easy way to contact your members via email or give you a script to make telephone calls, which are more effective than emails.

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What more can supporters do to get their voices heard on the environment?

Marty Hayden:

Jess mentioned social media earlier. If you target your member of Congress on Twitter, or praise them on Twitter when they do something good, they see that. Their staff certainly sees it and a lot of times they personally see it.

And more old-school are letters to the editor. Every Hill office pays attention to what happens in all their local papers, not just the big ones, when they are getting thanked or called out on something.

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Jessica Ennis:

One other way to communicate is by showing up at their office. You can look up their website — they’ll have the locations of their offices. If there’s an issue that you know is about to bubble up in DC, they have staff who will take a meeting with you.

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Would it be helpful for us as constituents to encourage the Climate Solutions Caucus to take real action now that the Democrats control the House of Representatives?

Marty Hayden:

In the new Congress, the Climate Solutions Caucus is going to be one part of the equation. Yes, encouraging members on that caucus to step up and support actions that are real on climate is important. I think there’s going to be a lot of venues for attention on climate next year. While it’s not 100% clear yet whether Nancy Pelosi becomes the next Speaker — we’ll find that out come January — she has already said she’s going to form a select committee on climate change which is something she did when she first took over the last time. The incoming chairs of each of the primary committees of jurisdiction over issues relative to climate change, all said they’re going to do climate hearings early in the new year so they plan on being active on it as well.

I think there’s going to be no lack of attention to and no lack of proposals that committees will be looking at and moving, related to climate. I mentioned earlier, the infrastructure bill and with a defensive posture relative to the Senate and them maybe trying to stick some bad stuff in there. On the House side, there’s a lot of opportunity for doing good smart things on climate and the infrastructure bill, both helping to go further on electrifying our transportation, and modernizing and making a smarter grid to get renewables to market more effectively, and to have micro-grids to make us less susceptible to big outages when something like a hurricane strikes. There’s a lot of things that can happen as well as things that can help protect communities from the impacts of climate change through an infrastructure bill.

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What are the groups Earthjustice is working with to address climate change?

Marty Hayden:

We work with a lot of big national environmental organizations like Natural Resources Defense Council, Sierra Club, Environment America, National Wildlife Federation, Environmental Defense Fund, League of Conservation Voters. We also work with a lot of smaller grassroots groups across the country and with groups in states. There’s a pretty broad coalition of groups that work together on making progress on climate change and on fighting going backward on climate change too.

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Jessica Ennis:

In probably every state where you are located, there are fantastic local and state organizations working on climate. In Maryland I’ve have had the pleasure of working with the Maryland League of Conservation Voters, the Maryland Chapter of Sierra Club and lots of other organizations. It’s clear that climate is such an important issue that needs to be addressed. Since we’re not seeing climate action with the Trump administration holding federal office, it’s been really great to see all the states, cities, and towns taking action.

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Keith Rushing:

I want to thank Jessica and Marty for speaking and providing some perspective on the recent election results. As we discussed, our work is now more important than ever. No one in America is above the law and Earthjustice will ensure that. For more information on how to make your voice heard visit our Take Action page on our website at earthjustice.org/action.

On behalf of myself and all of us here at Earthjustice we appreciate your continued support.

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