Meet Abigail Dillen
“This is a moment for those of us who care about protecting the environment to recognize the inextricable link between environmental protection and environmental justice.”
Abigail Dillen has stepped into the role of president of Earthjustice, replacing retiring president Trip Van Noppen. Abbie discusses her vision for the future of Earthjustice and our ongoing legal battle to win stronger protections for our communities and the environment.
This briefing, a conversation on October 16 with Earthjustice supporters, was moderated by Rebecca Bowe.
It is truly an honor to introduce Abbie Dillen. Before officially taking the helm at Earthjustice on October 1, Abbie served as Vice President of Litigation for Climate and Energy, leading our litigation and advocacy work to bring about a shift from fossil fuels to 100 percent clean energy. Prior to that, Abbie was managing attorney of Earthjustice’s Coal Program, which has played a central role in shutting down harmful and obsolete coal-fired power plants around the country.
Abbie, I’d like to start off with your story.
When did you first come to Earthjustice and what led you here?
I was hired as a law school clerk in my second summer at Berkeley Law. I had no real hope when I went in to interview with Doug Honnold, then the managing attorney of our Bozeman office in the Northern Rockies. I really didn’t have any history to suggest that I was the right person but I applied anyway. I was hired and I went to Montana. I was given the opportunity to think for a living and I was brought into some of the most seminal cases. We were fighting over the future of wolf reintroduction in the Northern Rockies. I was assigned to work on a really important case about protection of the Yellowstone River, and I got a glimpse of what it would be like to use my law degree to live a life of purpose and to see the kind of agency in the world that a small group of lawyers and others who were working in that office were bringing.
I realized you can’t take for granted that bison will roam or that there will be grizzly bears in Yellowstone, and that lawyers had a lot to do with whether those things we treasure persist. I was hooked. I did everything in my power to set myself up to come back upon graduation, which seemed like a long shot. But Doug hired me back as an associate, coming straight out of law school and I’ve been at Earthjustice ever since. It’s my professional home and I could never have imagined that I would be sitting in the seat that I now am sitting in, but I’m tremendously honored and grateful that I am.
Looking back on almost two decades with Earthjustice, what victories stand out to you?
One of the things that makes me most proud excited to work at Earthjustice is that the scope of work and the sheer number of talented people doing the work, gives rise to so many victories every year that it’s incredibly hard to choose.
Three bodies of work have been enormously successful that point to the special strengths of this organization. The first relates to the Roadless Rule, a landmark conservation effort that came about during the second term of the Clinton administration to protect 60 million acres of unroaded national forest. The reason why unroaded is so important is that roads are what bring in so many of the dangers to habitat — whether it opens important core habitat for grizzly bears to mining and drilling, or old stands of trees more susceptible to wild fires — our most intact forests are the ones without roads in them.
This was a huge conservation initiative where Earthjustice had played an important role in securing this amazing rule that essentially put off-limits to development, huge swaths of national forests, including in Alaska. But as soon as the administration shifted, it was an all-out battle over the next eight years and even into the first years of the Obama administration, battling suits by the timber industry, the mining industry, the State of Alaska, and other states that were ideologically and deeply politically opposed to this conservation effort. In the beginning we were in the position of defending the Clinton administration’s choice but soon we were the only defenders because the Bush administration was intent upon rolling back these protections.
It was amazing to see what Earthjustice was able to bring to that litigation over such a sustained period of time. We had deep roots in the places where many of these roadless areas are, so years of protecting the Tongass in Alaska gave us deep insight into what the stakes were, bringing forward the most powerful voices in favor of protecting these places and putting them before the court. There were so many lawsuits to coordinate — the ability to keep at it and never give up in the courts through lots of twists and turns to the point where we just had a final victory in the last case last year. That’s about 17 years’ worth of sustained litigation and the whole time, our lawyers were able to keep at bay, efforts to intrude on those areas and destroy some of our last most precious wildlands. All that time, the critters and all the incredible systems that those areas comprised, were able to go on and stay healthy, so that’s an incredible source of joy and pride for me.
Let me turn to our Coal Program. In about 2004, 2005, utilities in the country decided that it was time to build a new generation of coal-fired power plants, which were then and until very recently, the biggest greenhouse gas polluters in the country. Had we built the 200 new proposed coal plants, we would have been locked into a level of global warming and climate change that would have been catastrophic. So step one was to stop this rush to build new coal-fired power plants and then step two, which we are still in the midst of, is to retire the existing dirty fleet and replace it with genuinely clean energy.
When we started, no one thought we had a chance of success. Coal was powerful politically in part because it had a reputation of providing cheap power, which was an engine of American prosperity for a century. In some ways, coal still has a mythic place in our consciousness and history as a country but the reality is that coal was only cheap because — unlike other major industries that had been forced to clean up their waste, and air and water pollution — the coal sector had always been given a free pass and as a result, it had become the most polluting industry in the country. Sometimes we gloss over this, but coal plants were, and still are, killing thousands, tens of thousands of people every year.
So our theory was that if we could bring our bedrock environmental laws to bear — our Clean Air Act, the Clean Water Act, Resource Conservation and Recovery Act (RCRA), our federal waste statute — to force them to install 21st century controls to internalize some of the harms that they were imposing on the public, coal would no longer be cheap. We would create a level playing field for cleaner energy. I’m thrilled to say that that theory has proven out. By getting first-ever standards for mercury and other air toxic emissions, first-ever standards to govern the disposal of coal ash, the first-ever standards to stop dumping toxics like mercury and arsenic into our waterways, this whole combination of new regulations forced this industry to decide whether to invest to keep their old plants running or to finally make overdue retirement decisions.
Because Earthjustice has both a federal practice and we’re also rooted in place, we were able to go into the states where coal plants and their operators were making these decisions and grow a new energy practice where we could put our lawyers, and I was one of them, into our public utility commissions and litigate there making the case for clean energy as the economic and environmental alternative to coal, and now gas as well. At this point, we’ve shut down nearly half of the coal fleet and even with an administration that’s bent on reviving a dying coal sector, we’re still seeing all the trends going toward less coal and more clean energy, so I feel really proud of that body of work.
What are the victories we can feel good about in this moment, when we have an administration that is as hostile to environmental protection as any in history?
A couple days after the election, our managing attorneys all met and we rolled up our sleeves and thought about how we were going to address the coming onslaught which now is here. Patti Goldman, who is the fantastic managing attorney of our Northwest Office in Seattle said, these guys are going to give us phenomenal lawsuits, and they have. They have done careless, quick, and greedy work to try to rollback protections that we and our clients have spent decades putting into place.
One of those was a ban on chlorpyrifos, which is a neurotoxin. It’s used as a pesticide. It causes developmental delays and hurts children’s brains. It’s an awful thing for farm workers to be exposed to. We have long represented an amazing coalition of clients, including the United Farm Workers in pushing for a ban. The Obama administration had been poised to finalize that and egregiously the Trump administration pulled back. In a tremendous decision, the Ninth Circuit Court of Appeals said the record here is clear: this poison has no place in our lives and we’re not just going to send it back to the Trump administration to reconsider what to do, we’re going to order them to institute a ban. Those are the kind of strong remedies that we are able to get in this time where we’re seeing incredible overreach by the administration.
What is Earthjustice’s strategy as we continue to respond to an administration that’s really hostile to environmental values?
There’s one thing that I would never want to change and that is the critical role that Earthjustice plays as the legal backbone of the environmental movement. There’s no bigger group, more talented group, more experienced group of litigators, policy advocates, communicators who understand how to harness the power of law to catalyze change. The role that Earthjustice has always played, is critical. In administrations friendlier and less friendly, what we do is essential to keep our political leaders accountable for enforcing our laws, for keeping our very powerful corporate interests bound to comply with the rule of law. That role that we play has never been more essential than it is now. So I think my first and perhaps most important role is to do everything I can to sustain Earthjustice as the most robust, most effective organization that it can be.
That said, I am ambitious for us. I am amazed in every way by my colleagues, old and new. The amazing people who are coming to Earthjustice at this time are making the organization even stronger. As we’ve grown, my ambition for what we can do, who we can be, is growing, too. The experience of having grown an energy practice and seeing what good lawyers can do to help influence our energy decisions makes me feel very bullish about other ways that we can expand our impact.
One of the ways I’m most excited about is already happening — to bring work that we’ve done at the federal level for many years, ensuring that they change the facts on the ground, not just the content of our Federal Register Code of Federal Regulations. The environmental movement is rightly proud of the gains that we’ve made nationally but we still have thousands of communities in this very wealthy country where it’s not safe to breathe the air, it’s not safe to drink the water, where the soil is contaminated, where there is legacy industrial pollution that lingers without effective cleanup. Those problems are being magnified by climate changes. Earthjustice and the work that we do is incredibly relevant at the community level. Over the years, we’ve had opportunities to partner with and for communities. To be able to do more of that work at a time where injustice in this country is only being exacerbated by our federal leadership — that’s work I’m thrilled about. We’ve just announced that the fabulous lawyer in our Los Angeles, Angela Johnson Meszaros, will be leading a new program to advance community-based initiatives, so that’s one change that is complementary to all of the work that we’ve done historically.
Earthjustice has always been an organization that recognizes we have to have deep roots in place even as we try to influence national policy and that’s why we’ve been so successful in Lands, Wildlife and Ocean fronts for so many years. Now we’re bringing that same insight and approach to the work that we do to promote Healthy Communities and protect people.
Our strategy in this moment? We have made very conscious decisions to dramatically grow our ability to work at the federal level to preserve our structural protections and to fight for good science, for good government, for transparency, as well as to protect the substance of our bedrock laws and how they’re implemented by the federal government. We recognize that with the kind of deadlines we’re facing with respect to climate change, there’s no room to only be playing defense now. That’s why we’ve also made considered decisions to grow our presence in the states, to be pushing in forums where we have the opportunity to make affirmative process and scale up clean energy.
The Intergovernmental Panel on Climate Change (IPCC) has given us our most daunting deadline yet. Science is telling us that the next 12 years will be make-or-break in terms of our ability to move away from our carbon intensive economy in time to avoid the worst effects of climate change so I’m thrilled at the big bet that we’ve been able to make in the states advancing forward progress at the same time that we’re battling this administration and that is thanks to an incredibly generous outpouring of donors at this time who understand the stakes.
For many of our supporters who have known Earthjustice for years, you may be seeing a greater emphasis in our work at the intersection of environmental protection and social justice and that’s deliberate. It reflects our assessment that we cannot advance environmental protection if we are not also looking at the ways that systematic injustice, racial injustices, other social injustices are preventing environmental protection. There is a reckoning for the environmental movement now, recognizing the ways in which it has not been a fully inclusive movement, recognizing how many communities have not participated in the gains that we’ve made in air quality and water quality for instance, and recognizing that entrenched inequalities, both in our society at large and within the environmental movement, are responsible for disparities that are inconsistent with our mission to protect people on the planet. At this moment where we’re seeing our democracy under siege, where we’re seeing the most aggressive injustices celebrated by our leaders, Earthjustice is looking to live up to and live into our name in a deeper way. I welcome feedback about how we’re doing. This is a moment for those of us who care about protecting the environment to recognize the inextricable link between environmental protection and environmental justice.
The earth needs a good lawyer, but can that lawyer be effective when the judge is biased against her?
One of the first things I learned as a lawyer at Earthjustice is that we always have to work very hard to establish credibility in the courts. The courts have never been especially friendly to the idea of citizen suits and lawyers like us standing in the shoes of the government when the government won’t enforce the law. It’s always been a somewhat radical invention to give people like you and me this much power to hold our federal government, our states, our most powerful corporations to account so it’s important to recognize that Earthjustice has always had the challenge of convincing judges that we are properly before the court, that our cause is righteous, and that we ought to win on the facts and the law. We’ve been successful for doing that for almost 50 years now. I’ve watched us win in incredibly hostile forums and I believe that the gravity of the threats that we face now will encourage judges both to be a check on the other branches and fierce defenders of their independence at a moment where that is being questioned. The scale of the environmental harms that all of us are experiencing will encourage judges, as humans, to continue to hear us fairly in many instances.
That said, the judiciary is changing and the balance of the Supreme Court has changed in a profound way. It’s not only Justice Kavanaugh, Justice Gorsuch is also someone who does not believe in any role for government in protecting civil rights, workers’ rights, and the environment. Both justices have a deep body of jurisprudence that’s about scaling back the role of regulation in our lives and regulation has come to be a dirty word but what it means is environmental protection. We are very worried about the ways in which this court may seek to roll back important environmental protections and laws that we’ve come to rely on for at least a half century. That said, the Supreme Court only takes so many cases a year. It’s never been an especially favorable forum for environmental issues so Earthjustice and our colleagues in the legal profession, have been quite adept at keeping important issues out of the Supreme Court and we’ll continue to do that. To give some idea of our success in the last 47 years, I think only 11 of our hundreds of cases have ever made it to the Supreme Court. That said, we do have now two justices who will be more eager to bring our issues up to the court but I remain confident that the vast majority of the cases we bring apply law that’s fairly well settled and will stand the test, even of the Supreme Court and a somewhat more conservative judiciary.
It’s important that we’re working more in the states so that we have a more diverse portfolio of venue domestically and we are dramatically expanding our work abroad. There are many other rule of law countries where the Earthjustice model has enormous potential to make change. Most of the work we are doing is focused on taking lessons learned in the U.S. and working with partners abroad to hasten the transition from fossil fuels to clean energy. The potential to make great law and great strides abroad is huge right now.
Can you update us on the status of the Bears Ears and Grand Staircase-Escalante National Monuments legal actions?
We fought a lot about the best venue to bring the lawsuit and we and our clients decided on the U.S. District Court in D.C. The government immediately moved to transfer the case back to Utah, judging that that would be a friendlier forum for the government’s arguments. The motions to transfer had been fully briefed for almost a year and it was becoming a bit of a nail biter awaiting the judge’s decision but she’s ruled and she’ll be keeping the case in D.C. I don’t want to speculate about what her decision on the actual merits of the case may be. We believe we have a very strong case and the lawyers who are working on it are doing it with expert care. This is a very nice win along the way — that the case will be heard in the forum that was our client’s choice.
How will Earthjustice influence the transition to 100 percent clean energy? What is your definition of 100 percent clean energy?
Our theory of change is that by cleaning up the power sector and fueling it with genuinely clean energy, we can then use that power to fuel our transportation system, to heat and cool our buildings, essentially electrify everything. We have forums where good lawyers make a huge difference and those are public utility commissions. They are pretty arcane forums that haven’t historically had a lot of spotlight in the press and the issues get pretty wonky. They make decisions about how much money utilities make, what kind of power they procure, and what kind of investments they make in fossil fuel infrastructure versus clean energy infrastructure. Those decisions are routinely made in trial-type settings where people who pay electricity bills are allowed to intervene, bring counsel, cross-examine utility executives, put up our experts, write legal briefs, and make arguments. For lots of reasons, that opportunity was dramatically underutilized for many years and our theory was maybe if we got in and treated these forums like trials and brought the best experts and lawyers to bear, we might be able to convince our energy regulators that they can keep the lights on and save customers money by compelling and approving investment in genuinely clean energy.
Our definition of clean energy is renewables, and wind, solar, geothermal, offshore winds, and the complementary resources like energy storage and demand response that allow intermittent energy to be harnessed effectively in an increasingly flexible grid.
I often get questions about whether we’re using 100 percent clean energy rhetorically and pragmatically or if we’re insisting on a standard that can’t be met. We have so much work to do to even get penetration levels of wind, solar, and other clean resources up to a place where we can meet, for instance, the recent IPCC goals to cut our emissions by 45 percent in the next 20 years. 100 percent is the right directional goal. We have to decarbonize our economy by mid-century, so thinking any less ambitiously than 100 percent clean energy in our power sector does us a disservice.
Earthjustice has filed over 100 lawsuits against the Trump administration. Are you winning? Are you generally playing defense or are there opportunities to make progress on climate change under this administration?
We are winning. While it takes a while for these lawsuits to be briefed, argued, and decided, the rulings are coming in and we’re overwhelmingly winning. We have a tracker of our cases against the administration on our website, and you can follow our progress there.
Unfortunately, we’re largely playing defense although going back to my earlier points about federal overreach and the kinds of decisions it encourages from judges at this moment, this is an opportunity to make good law that we can use now and into the future. Much of the great environmental law of the past was made during the Jim Watt years where the federal government lost credibility in the courts and the courts handed down very strong rulings to our clients and other groups. We have an opportunity to do that now, so thinking carefully about the opportunities that we have to develop good law that can be durable is important. As we play defense at the federal level, it underscores the need to be making forward progress in the other venues that we can so, that’s why we’re investing so heavily in forward progress in state forums and in international forums.
How does Earthjustice choose which legal challenges to focus on?
Across Earthjustice’s broad portfolio of work, we have people working deeply in different areas of the country so important regional sites don’t usually escape our attention. And we have deep roots in the Beltway so we’re always watching the ways in which federal agencies are posing threats — where there is a legal handle to make a difference and catalyze change over the long term. Because we look at things from that first principle of believing in the power of law, it’s rare that we don’t find an important legal strategy that can be married to media and political strategies to great effect.
How do we choose? In the healthy communities context we’re focused on the deadliest air pollution in the most overburdened places, the kinds of water contamination that are most deeply impacting, again, disproportionately burdened communities. The one big piece of federal legislation in the environmental sphere that’s happened in a couple of decades is a chemical safety statute, a revamp of the Toxic Safety Chemicals Act. For me, Rachel Carson was a seminal influence and I can’t help but think that she would be horrified at the chemical body burden that we carry today. Working on what chemicals are allowed to flow through our lives, taking on the most powerful chemical companies is another huge piece. We’re working backwards from what are the best legal angles to advance progress in those areas.
In the climate context, we’ve been focused on cleaning up the power sector and now that that’s happening in key places like California, we’re working on getting clean electrification into the transportation and building sector. In places like California, we’re focusing on doing that in the areas which are suffering most not only from carbon pollution but also conventional pollution, like diesel. Electrification of our ports, our mass transit, and our freight is not only a climate solution, it’s a health solution.
I’m leaving big swaths of work out but in the lands, wildlife and oceans context, our ecosystems are under tremendous pressure so picking places where we think we can make a tremendous difference and create precedents that can be used elsewhere. Right now, in this administration, what we’re forced to respond to is a rush to drill both onshore and offshore that threatens incredible ecosystems that we successfully preserved for half a century. Much of our focus now is continuing to protect our coasts and protect our treasured public lands from a rush to give them away to the oil and gas industry.
What can be done to stop the Department of Interior from harming the Endangered Species Act?
Marjorie Mulhall leads this work for us in our Policy and Legislation Team. Marjorie and her staff are working 24/7 to push back on efforts in Congress to whittle away at the Endangered Species Act, so far with success. We are following the emerging efforts to gut the regulations that we’ve used as crucial tools for so many years now. We have a team of lawyers who are working through comments on those efforts and we certainly expect to litigate whatever final action the Department of the Interior takes.
National Environmental Policy Act (NEPA), another bedrock tool, is encountering the same kinds of elemental attacks, stripping away whole swaths of regulation that reflects case law and experience with how to make these laws work. These are structural threats to our ability to protect the natural world and compel informed, responsible decision-making. We are going all out both to educate champions on the Hill to bring a public spotlight to this, garner public support for these critical safeguards, and we will absolutely be ready to litigate if and when this administration does its worst.
Update on California’s state emission reduction standards and our fights in court to protect those.
We’ve been working for the last 20 years to actually deliver on the Clean Air Act promise for counties in the South Coast and the Central Valley. Among the top ten most polluted counties every year, six to eight of them are in California. That’s part of why we’re trying to work on transportation electrification to get a handle on that intractable pollution. In the meantime, it’s important that the standards that air districts in the California Air Resources Board are forced to comply with, remain strong on the books so that California has both the mandate and the political cover to keep moving forward.
There are also a slew of ambitious state actions that California is taking as a counterweight to the kind of deregulatory agenda of the Trump administration. It’s been critical, for instance, that California have a waiver to be able to impose more stringent carbon pollution standards on automobiles and light duty trucks. Earthjustice is part of a very vibrant and well-staffed fight to protect the California waiver to ensure that California can keep using its extraordinary market power to push us further when we’re seeing an abdication of responsibility in the federal government.
What should our supporters be doing to make their voices heard?
I would love to use this moment to say vote on November 6 and care about the down-ballot races. There is so much at stake in these midterm elections so that’s my plea in advance of November 6. In whatever way Earthjustice can help you be more engaged, we have action alerts of all kinds, we have the tools to help you write editorials that will be picked up in your local papers. So however we can help you take action that feels right in your given circumstances, we would love to be helpful.
Abbie, thank you sharing your hopes and vision for Earthjustice going forward. For more information on how to make your voice heard, visit our Take Action page on our website. That’s earthjustice.org/action and like Abbie said, don’t forget to vote.
On behalf of myself and all of us here at Earthjustice we appreciate your continued support.