Drew Caputo Talks Litigating Against Trump’s Anti-Environment Moves

drew 225x150 Drew Caputo Talks Litigating Against Trumps Anti Environment MovesWe caught up with Drew Caputo, VP of Litigation for Lands, Wildlife and Oceans at the non-profit environmental law firm EarthJustice, to find out how his organization and the environmental community at large is responding to the anti-environmental threats of the incoming Trump administration.

Since 1971, Earthjustice has been the premiere U.S. legal organization defending the environment, and has won hundreds of victories in protecting clean air and water, preserving our oceans and wilderness, saving endangered species and fighting to mitigate climate change.

Before moving over to EarthJustice in 2014, Caputo served as Assistant U.S. Attorney in San Francisco where he investigated and prosecuted crimes involving public corruption, civil rights violations, national security matters, and other crimes. Before that, he spent 13 years litigating on environmental cases for the Natural Resources Defense Council. He is best known for his work safeguarding rockfish populations, blocking oil and gas leases in sensitive coastal areas, and tirelessly working to protect wetlands across the country.

EarthTalk’s Ethan Goffman interviewed Caputo via Skype at EarthJustice’s California office…

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EarthTalk: The Trump administration is likely to weaken enforcement of existing environmental regulations, including the Obama Clean Power Plan. This would jeopardize U.S. commitment to reduced climate change under the Paris Agreement. What do you see as the key dangers here, and how might this play out?

Drew Caputo: Well, Ethan, the incoming Trump administration is an unusual situation in the sense that at least in my lifetime, we’ve never had a president-elect without a record for public service, since Trump has never held elected office yet. So usually, people have a voting record or a record as a governor or other governmental role, and well-developed policy positions, and Trump has neither. So it’s a little unclear exactly what he’s going to do. Unfortunately, the issues that he has taken policy positions on, on environment and energy issues, his policy positions are really bad. You’ve mentioned one, which is President Obama’s Clean Power Plan, which is a really important thing for making progress on climate change and dealing with one of the largest sources of climate pollution, which is from coal-fired power plants. Trump has indicated a desire to essentially end the Clean Power Plan, and he may or may not be successful at that. There is a lawsuit against the plan right now working through the court system, filed by the industry and hostile states, including the state of Oklahoma, represented by their attorney general Scott Pruitt, who is Trump’s nominee to be EPA administrator in his administration. Earthjustice and other environmental groups are in that lawsuit defending the President’s plan, and we will do everything in our power to protect and preserve.

E: Okay. And even if you win the lawsuit though, what is Trump and his administration likely to do to undercut the plan?

Caputo: Well, Trump can proceed administratively to essentially revoke the plan and replace it with something else. I think if Trump wants to kill the Clean Power Plan, he has multiple avenue to try and do that. I think the most important thing to me, though, is the Clean Power Plan is in a lot of ways an assembling of programs and requirements that have been underway for years in order to hold polluters accountable for their pollution. Even if the Clean Power Plan goes away, the key changes in the power-generating sector are permanent. Those key changes are the decline in coal, caused first of all by laws like the Clean Air Act and regulations under the Clean Air Act, independent of the Clean Power Plan, that hold dirty coal polluters accountable for their pollution and increases their cost. So the economic decline of the coal industry is a function of two structural factors that are not going to change if the Clean Power Plan goes away. One of those structural factors is the one I just discussed, which is the fact that coal is expensive because coal polluters are being required to take account of their pollution. The second and equally importantly is the increased economic viability and terrific competitiveness of clean sources of energy: wind power, solar power, and energy efficiency. We’ve seen a significant shift away from coal and toward those types of renewable and sustainable clean energy sources, and those structural facts are not going to go away. So while the Clean Power Plan is in real danger because of the political promises that Donald Trump has made, the shift of the power sector away from coal and toward renewables is not only a structural thing, it’s something that environmentalists are going to fight with every tool in our disposal to make sure that that transition continues.

E: Okay, but should the Clean Power Plan fail even though the momentum of the clean energy, what kind of signal might that send to the international community, especially in wake of the Paris Agreement?

Caputo: Well, it’s a real danger because the U.S. is no longer the world’s largest carbon polluter. China is. And since climate change is a worldwide problem, it is in the U.S.’s interest for there to be international requirements for dealing with climate change because it is certainly in the U.S. national interest to have the world’s greatest climate polluter, who is somebody other than us, tied into a system where they’re required to make progress on that for the benefit of the whole world, including us. I also think that I don’t think that the U.S. ought to want to be a global bad actor in the eyes of other nations on a problem that there is an almost unbroken consensus around the world—except for some sort of bad actors that are heavily tied into the fossil fuel industry—that climate change is a crucial issue for the world to get together on. So I’m not at all saying that there aren’t real costs if the Trump administration reverses the Clean Power Plan. There are; there are huge costs. And those costs are environmental; they are foreign relations-related, for the reasons you just suggested; and they’re economic, to the extent that the Trump energy policy is to essentially revert to a 1950s policy in which it’s basically fossil fuels all day, all the time. That’s not only bad for the environment, and it’s not only bad for the U.S.’s standing in the world, but it’s bad economics because one of the reasons why renewable energy is flourishing is that people are making money from it. And U.S. technologies are building new technologies and creating new jobs in a new economy that’s not only good for the environment, but it’s good economically because it creates new jobs. If we veer back to a backward-looking energy strategy which is just about producing and burning as many fossil fuels as possible, that has a negative economic impact on our nation, and other nations will assume economic leadership in that area.

E: Okay, so given all the devastating effects backing out of the Clean Power Plan and the commitment with Paris would have, what tools does Earthjustice and other environmental groups have to fight such moves that are likely coming from the Trump administration?

Caputo: Yeah. So there are a lot of things that we can and are doing already; I’ll give you a few examples. Number one is we are going to defend the Clean Power Plan in court for as long as it takes. Second example is that while federal regulation of energy is very important, state regulation of energy is at least as important. The energy sector is one of the most regulated sectors in our economy, and that regulation for the most part is state-by-state, through state public utilities commissions and other regulators. Earthjustice is spending a lot of time right now in those public utilities commissions, challenging proposals by utilities to extend the life of coal-fired power plants and to stick consumers, rake-payers, with the bill. And we are having a lot of success in going into those proceedings and pointing out to the regulators that coal-fired power plants are not only bad for the environment, but generating power from them is more expensive than other sources of energy. And we will continue to do that. Final example is that even if the Clean Power Plan goes away, there are a series of legal requirements stemming from federal laws like the Clean Air Act and the Clean Water Act that will still be in place. And we will fight tooth and nail to continue to force the administration to comply with and implement those clean air and clean water requirements. And I view those requirements as consensus requirements that the great majority of Americans feel very strongly about. So even if the Clean Power Plan goes away, there are still going to be strong requirements that affect what the energy sector can and has to do under laws that Americans cherish, like the Clean Air and Clean Water Act. And we are going to do all we can in the Trump administration the same as we have done all we can in the Obama administration to make sure the government and industry comply with all of their obligations under those laws.

E: Okay, great. And as important as the Clean Power Plan is, there are of course other environmental issues out there. What key issues that Earthjustice cares about do you see might come under threat in the Trump administration, and how might Earthjustice respond?

Caputo: Well, the issues that are under threat by—the environmental issues that are under threat by the Trump administration is virtually everything. Because as we’ve seen from Mr. Trump’s appointments, this is shaping up to be the most anti-environmental cabinet in American history since the dawn of the environmental movement. It is populated by, for example, the chief executive officer of Exxon at the State Department; by the Attorney General of Oklahoma, who has made a career out of litigating against environmentally-protective actions; the incoming Secretary of Energy has vocally supported abolishing the Energy Department; and the incoming Secretary of the Interior has a congressional track record that has a few hopeful things in it and then dozens and dozens of bad votes for the environment. So what’s at risk is everything. I think we see a special risk in all areas dealing with fossil fuels—oil, gas, and coal—because of Trump’s relatively well-developed policy positions in which he for example wants to throw open currently-closed areas to oil drilling in the ocean and on land, on public lands. So I think we see some special risks of efforts by the new administration to greatly expand fossil fuel production on American lands and in American waters. And then I think we also see special risks of focused reversals on Obama pro-environment actions. The President and his team have made a series of statements indicating that an initial order of business for them is to reverse specific actions that Obama has taken using his executive power to protect the environment. So I would say an example of that that we are watching very closely is that last month the President withdrew from availability for oil leasing most of the Arctic Ocean and some important areas in the Atlantic Ocean. And so we want to make sure that the Trump people don’t try and reverse that. Another example is that President Obama has designated a series of national monuments on public lands and in ocean waters that offer significant new protections for those lands and waters, and there are vocal segments within the Republican Party that have been calling on the new administration to reverse those things.

E: So if they do reverse them, I mean you can try and put public pressure on them, but are there any legal actions that can be taken?

Caputo: Yes. If they try and reverse those things, we will sue them. That’s what we do. Earthjustice is a—we are a public interest environmental law firm, and we represent environmental groups in lawsuits against the government and industry. Our motto is that we exist because the Earth needs a good lawyer. So if the Trump administration tries to reverse these actions by the Obama administration, we will see them in court. And I’ll take monuments as an example: the national monuments are designated by the President pursuant to an early 20th century statute called the Antiquities Act, which was enacted during Theodore Roosevelt’s administration. And that Roosevelt and other presidents used to initially protect as national monuments lands that ultimately became national parks. So for example, Arches National Park in Utah began as a national monument. The Grand Canyon began as a national monument. The statute allows presidents to protect national monuments by designating them but doesn’t have a mechanism for a president to un-designate a national monument. So if President Trump were to try and un-designate a national monument, we would challenge that in court, and it would be my expectation that we would win because the law doesn’t provide for that sort of reversing action. Our view is that litigation is rarely a first choice but is often a last resort when policy arguments and sweet reason fail to carry the day, and we will be very vigilant with the new administration—as we’ve been with all administrations—to make sure that they are following the law because they have to comply with the law just like anybody else. And where they violate the law, we will go to court to hold them accountable.

E: Right, and this might be a time of last resort.

Caputo: That’s right.

E: How about – because Congress is also not friendly toward the environment, and they don’t have Obama or someone like him to veto legislation. So do you see any legislation—even important long-term acts like the Clean Air Act—do you see a threat to that? And if so, how would environmental groups react?

Caputo: Well, we are going to fight tooth and nail in Congress to stop Congress from rolling back decades of progress through passing strong environmental laws. When you think about it, when I was growing up in the 1970s, the Potomac River smelled like a sewer, and the Cuyahoga River in Cleveland caught fire.

E: And smog alerts in Los Angeles.

Caputo: That’s right. And today, in 2017, our waters are cleaner, and so is our air in most places. And that’s not a coincidence. It’s because we passed and enforced the Clean Air Act in 1970 and the Clean Water Act in 1972. And there is no support in America for rolling back bedrock environmental protections that people count on, not just to protect the Potomac River for example, but most importantly to protect their and their families’ health. And similarly, there is a broad consensus in America that protecting national forests and national parks and imperiled wildlife, as well as clean air and clean water, are core American values and core requirements of the American quality of life. So I do not view this election as a mandate at all to roll back those sorts of protections. And to the extent the leaders of Congress seek to do that, I think they will find themselves with very difficult sledding, especially in the Senate; and that, if they were to be successful, they would face a significant backlash from the American people, who did not vote for rolling back environmental protections in last November’s elections.

E: So you’re taking about the filibuster, maybe as the first line of defense, and then public pressure and future elections.

Caputo: Correct. Correct. And let me say one other thing. I am hopeful that…let me start again. One of the worst things that has happened about environmental policy in the past few decades is that it has become a partisan issue. One of my biggest heroes—political heroes—was Senator John Chafee from Rhode Island, who was a Republican. But he was a passionate defender of the Clean Water Act because he perceived good water quality as essential, not just to American and Rhode Island’s environment, but to its economic health. And President Richard Nixon, a Republican, signed the Clean Air Act and the Endangered Species Act, among other legislation. In recent decades, we’ve gotten away from that, so that the bulk of the Republican Party has become vocally anti-environment and most environmentalists in Congress are Democrats. It’s my hope that that will change. And certainly if a Republican Congress begins to ratchet back environmental protections, I think it will dramatically put their majority at risk because again, Americans did not vote for reducing environmental protections in last November’s elections.

E: Okay, great. And finally, it seems likely that Trump will appoint judges who are less friendly to environmental issues. That’s a longer, slower process, but over the long term, how do you see that impacting the environmental movement in general, and especially Earthjustice, which depends so much on litigation as the last line of defense.

Caputo: Yeah. You know, we go to federal court every day to protect the environment and to give a voice in court for people who care about the environment. Our motto is that we exist because the Earth needs a good lawyer. We’re not looking for judges who wear green robes or who are ideological. In fact, what we’re looking for are judges who are just going to play legal issues straight. So it’s our hope that the new president is going to appoint well-qualified, thoughtful judges who are going to apply the laws as written and decide cases without bias or fear or favor, the way the greatest judges—whether they’ve been appointed by Republican or Democratic presidents—have in the past. The federal judges serve for life, so those positions don’t turn over quickly. We will lend our voices to the judicial nomination and confirmation process, and we will be asking senators to make sure that all appointees, regardless of who the President is, are well-qualified and free of bias, and that’s how we’ll approach the process.

E: Great. Any final thoughts?

Caputo: I don’t think so. It’s been a pleasure to talk with you, Ethan.

E: All right. Thanks very much, and good luck.