Defending the Environment in Dark Times
Where do we go from here?
Yesterday’s election didn’t turn out the way many of us hoped. The results may put in danger much of the progress made over the past eight years in addressing environmental issues and even risk some earlier accomplishments. What’s done is done, however, and we need to think about how to move forward.
The Bush years provide a blueprint that still largely applies. Environmentalists were able to use a three-part strategy to deal with the anti-environmental pressures in D.C., and those tools remain available.
The first approach under Bush was to use whatever political leverage was available at the national level to block anti-environmental moves. This included using the Senate where possible to block legislative initiatives, and lobbying heavily on individual issues. This remains a definite possibility, considering the narrow margin in the Senate and that chamber’s bevy of tools that can be used by the minority.
The second approach under Bush was to use the courts. The Supreme Court is likely to return to its prior alignment as soon as Trump fills his first vacancy, with Justice Kennedy as the swing voter. He is certainly not a reliable environmental vote but is winnable on some issues. The lower courts have a heavy contingent of Obama appointees and should be more sympathetic overall, especially for the first few years before Trump has a chance to make a lot of appointments. National environmental organizations will play a critical role here, as will sympathetic state governments.
The final approach under Bush was to press forward as much as possible at the state level. California passed AB 32; the Northeastern states moved forward with RGGI; and many other states worked hard on issues like renewable energy. Because Republican control of state governments has increased in the meantime, this strategy will now need to focus more on the regions where Democrats remains strong, such as the West Coast and the Northeast.
While these strategies remain valid, we also need to take advantage of ways in which the situation has shifted since 2008. One such change relates to the fissures within the Republican Party. Trump’s victory was as much a blow to conservatives like Paul Ryan as it was to Democrats, and Republicans lost ground among some demographics. These fissures may create the opportunity for new alliances on issues like renewable energy. Another important change is the increased economic strength of the green economy, which may translate into political leverage even in some GOP areas.
There’s no doubt that this is going to be a very tough four years. The task is to survive with as much of Obama’s environmental legacy intact as possible and to make progress on whatever fronts are open.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more