Independent Voices and Environmental Law

The holiday season is typically a time when we all reflect on the people and groups who do good, and how we can all -- in our own small way -- make a difference. In the environmental sector, nonprofits like NRDC and our allies have historically played a significant role in creating such positive change. Over the past year, we've all witnessed how powerful the very concept of "change" has become.

Today, we're about a month away from the inauguration of a new Administration in Washington, an inauguration that is likely to bring far greater official interest in environmental well-being than we've seen in years. Many believe that the importance of independent environmental organizations will decrease in the upcoming administration. But, counterintuitive though it may seem, the work for nongovernmental organizations remains as critical -- perhaps even more so -- in steering and assisting what we hope will be an eager and willing administration toward the best decisions through our advocacy.

Imagine how different things would be right now if over the last eight years, we'd had independent organizations watch-dogging the government's oversight of financial markets. Imagine if we had had voices who pushed back at what has become an almost religious faith in unregulated markets; voices who asked loudly and persuasively whether some of the claims being made were not factually baseless, voices who were part of the negotiations when rules were being established to ensure there was transparency, fairness and accountability.

Unfortunately no organization with enough power in the financial arena has existed.

For environmental protection, however, we've had this type of oversight in the role of "public defenders" since the early 1970s. These nongovernmental organizations, as we're called around the world, played significant roles in crafting legislation like the Clean Air Act, the Clean Water Act and the National Environmental Policy Act.

Take this story from the last 48 hours before Congress adopted the 1990 Clean Air Act amendments. Three NRDC lawyers were keeping a close eye on the draft legislation as negotiations continued. It was 10 o'clock on a Friday night when the other side dropped what they called "technical amendments."

At first glance the amendments seemed to be highly-detailed and inconsequential editorial corrections. But David Hawkins, at the time NRDC's Director of Air and Energy, caught a new semi-colon that would have changed the meaning of a critical paragraph and expanded the ability of power plants to delay compliance with the new law. He called congressional allies and the new semi-colon disappeared. Imagine the level of commitment and understanding it takes to catch the importance of a seemingly innocuous semi-colon late on a Friday night.

Nongovernmental organizations like NRDC also give life to the words in laws by being some of their most aggressive defenders and enforcers. Almost 40 years ago, for example, a local group challenged the decision of the federal Department of Transportation to build a freeway through a public park in Memphis, arguing that Congress had intended to prohibit the government from putting the road through the park unless all other options were truly infeasible. The government brushed off this feasibility analysis. In a landmark decision, the Supreme Court reversed the government's decision and said that Congress meant what it said.

The following year, the Sierra Club challenged the Department of Interior's plans to build a ski resort in the Sierras. In another landmark Supreme Court ruling, Justice William O. Douglas noted the importance of independent voices: "[B]efore these priceless bits of Americana are forever lost ... the voice of the existing beneficiaries of these environmental wonders should be heard."

Similarly, when utilities figured out how to get around the regulations of the original Clean Air Act -- by building their smokestacks higher, thereby pushing the pollutants higher into the atmosphere and dispersing them but also creating acid rain -- it was nongovernmental organizations, not the EPA, that pushed back.

At one point, NRDC alone had more Clean Water Act enforcement cases than the entire Department of Justice. If you look at environmental case law history, almost all the cases have been brought by groups like NRDC and our allies.

Undoubtedly, even in this new phase of history we are about to enter, nongovernmental organizations with such a significant legacy of environmental law reform will remain strong and crucial voices.