About Our Guest
Jonathan Z. Cannon is the Blaine T. Phillips
Distinguished Professor of Environmental Law at the University of Virginia School of
Law where he is Director of the Law School’s Environmental and Land Use Law
Program. Professor Cannon joined the law faculty in 1998 from the Environmental
Protection Agency where he served as general counsel between 1995 and ’98 and
Assistant Administrator for Administration and Resources Management between 1992
and ’95. Professor Cannon teaches Environmental and Energy Law, Land Use Law and
Conservation Planning and Law. He has written widely on institutional design for
programs as diverse as the Chesapeake Bay Restoration and Superfund, the cultural
significance of the Supreme Court’s environmental decisions and on the future of the
Environmental Movement. He has authored Environment in the Balance: The Green
Movement and the Supreme Court, published in 2015 by Harvard University Press.
John Cannon serves on the Board of Directors of the Environmental Law Institute and
on the Advisory Board of the Policy Integrity Institute. He received a BA from Williams
College in 1967 and a JD from the University of Pennsylvania Law School in 1974.
Jan Paynter: Hello. I’m Jan Paynter and I would like to welcome you once again to our program Politics Matters. Today we are so pleased to welcome back as our guest UVA Law Professor Jonathan Cannon to discuss the history and future of the American Environmental Movement. Welcome back, John.
Jonathan Cannon: Thanks, Jan. I’m very happy to be here.
Jan Paynter: John, to what extent would you say that the members of the Supreme Court both shaped and have been shaped by the value polls in American culture and I know that gets a little trickier from a legal point of view.
Jonathan Cannon: I think the…the Justices are all legally trained. They think and speak in the manner of lawyers. They’re trained to apply legal concepts and they all do that and they’re all very good at it. These are all very good lawyers on the Supreme Court to begin with. So my argument is not that these cases are all about something other than law. They’re a lot about law and the application of recognizable legal principles. But my argument is that, particularly in cases where there’s no established precedent and where the issues are socially or culturally very salient, that is, they have a high interest socially, that the Justices will be oriented or they will orient around a world view and a value set that I don’t know how they came by but they consistently exhibit in their approach to these cases and in outside writings in some cases.
Jan Paynter: So for instance, when nominee Gorsuch speaks about putting aside and checking at the door his predilections from a social and political point of view, would you say that that is possible?
Jonathan Cannon: I think it’s not possible. I think it’s a worthy aspiration and I think that’s the way justices publicly talk about what they do and judges publicly talk about what they do but ultimately justices come to these issues as whole people and they orient around these issues as whole people and being a whole person means that you have beliefs and values that you bring with you.
Jan Paynter: Well, it’s very interesting because it’s…then the Court, as I think about it, is a real window into the larger operations of the society and we can learn a great deal about ourselves and our positions I think by looking at the wrangles on the Court.
Jonathan Cannon: That’s certainly my view. And I think the analysis that I provide in the book bears that out because the reasoning of these texts, these legal texts, the language of these legal texts, the patterns created by these legal texts, which are kind of super narratives, support the notion that there are quite different world views operating through these legal expressions. And there is a wealth of literature generally on the relationship between a justice’s or a judge’s ideology and the way they rule in cases and it’s, in my view, quite well established that ideology isn’t the only thing but it is a factor, a significant factor in determining how justices or judges line up in cases.
Jan Paynter: Well, touching on issues of ideology, how would you assess the legacy of the late Justice Scalia with respect to the progress of environmental concerns and if you would, discuss Rapanos v. United States and its significance.
Jonathan Cannon: Okay, that’s a good example. And Justice Scalia was a very influential member of the Supreme Court. He was colorful, his opinions are a hoot to read because they’re sometimes over the top in their rhetoric but clearly he was engaged and involved and fully present in his opinions and that’s, for me and others, a delight, whether we agree with his opinions or not. He was generally considered to be, and my analysis bears that out, skeptical of environmentalist views. He wrote once before he went on the Court that the courts were having a love affair with environmental litigation and they needed to get over it and when he got on the Court he did significant work in having the Court get over its love affair, if that had ever been the case, with environmental litigation.
Jan Paynter: He did facilitate that breakup I would say, yes.
Jonathan Cannon: He did facilitate that breakup. Right. And partly that’s a function of judicial principles but I think he was also—and I try to show this in the book—deeply skeptical of some of the basic tenets of environmentalism. He…there is a decision he wrote in a case called Lujan, which was a standing decision. The issue was about whether environmental plaintiffs could get into court to litigate claims about the application of the National Environmental Policy Act overseas and the claims of the plaintiffs were that there was…that U.S. authorities were taking inadequate steps to protect species abroad from U.S. funded projects. And Justice Scalia wrote an opinion, famous opinion, Lujan II, which said, ‘These people don’t have standing because they don’t have the requisite connection to these creatures.’ And he, in the process of reaching that conclusion, he discounted a number of theories that were based on the notion of this interconnectedness—ecosystem connections and creature connections and so forth that we’ve talked about—and he dismissed them with the back of his hand very derisively and if you had any mistake about his sort of general orientation or view of the Environmental Movement or the contentions of environmentalists on these issues, I think that opinion would have cleared it up.
Jan Paynter: You note in the book in the early days of the Environmental Movement that the Court had internalized, as you put it, an environmentalist sense of urgency and again this issue of what is a…where is there an urgency seems to inform the decisions and then over time, in particular after ’76, you note that there began to be a definite shift in stance in favor of development, industry and positions held by government and we’ve touched on that. What in your view accounts for this shift away from pro-environmentalist rulings, would you say?
Jonathan Cannon: Well, I think there are probably several factors. One, there are changes in personnel on the Court. That is, Justice Scalia joins the Court, others join the Court and that changes the makeup of the Court with special significance for environmental cases, as well as others. There is also I think a process going on here of the Court getting used to environmental cases. So the early cases came in the first flush of the Environmental Movement, there was a sense that this was something new and important warranting special care, if you will, from the Court. And then environmental cases kept coming and some of them were pretty boring. They were not all exceptional, exciting cases. The statutes were difficult. Sometimes the Court got frustrated with the complexity of the statutes so that over time I think environmental litigation before the Court became more routine and less special and the Court began to see these issues in a larger context of many other competing interests and concerns.
Jan Paynter: Oh, I see. So would you say that the Movement has been perhaps a victim of its early legislative successes?
Jonathan Cannon: Well, I think that might be said in the context of public opinion and I don’t know with the Court whether that would be a factor but certainly the Court’s becoming accustomed to these cases, getting used to them, seeing that there are competing issues and concerns would be a part of that.
Jan Paynter: I see. You write that after 2008 the economic crisis faced by the country resulted in environmentalism being ranked far down in the mind of the public and indeed you point out there’s no significant environmental legislation that’s occurred in the past two decades, which I find astonishing. With improvements in the economy, John, albeit slowly, as we all know, are we beginning to see an increasing interest in environmentalism?
Jonathan Cannon: Whoa. Well, I don’t know. I don’t know. I think what we see is a complex situation. So last year there was significant environmental legislation. The Toxic Substances Control Act was amended through a consensus process that brought industry together with environmental groups. There were some dissenters but generally Republicans together with Democrats to produce an amendment to the Toxic Substances Control Act.
Jan Paynter: So this is since you wrote the book.
Jonathan Cannon: This is since I wrote the book. So that’s, if you will, a hopeful spot. But at the same time, we see a degree of polarization on environmental issues that’s unprecedented, that could hardly have been imagined in the first days of the Environmental Movement when Republicans and Democrats were all voting for the same legislation. Now it seems that the standard Republican policy position is that environmental regulation kills jobs and needs to be reined in and that climate change is either a hoax or not worthy of concern and you see almost the diametrically opposite views on the Democratic side so that that polarization basically produces a kind of a gridlock for dealing seriously with issues like climate change that have come up more recently and become prominent.
Jan Paynter: The late Justice Scalia and Justice Ginsburg are often viewed as two sides of the environmental poles, if you will, and we’ve touched a little on that. Where do you see the direction of the Court regarding the environment moving now without Scalia and as we touched on earlier, how might the appointment of Gorsuch affect the balance or will he, in your view?
Jonathan Cannon: Well, the analysis that I’ve seen of Gorsuch judicial philosophy suggests that he is a jurist in Justice Scalia’s vein. He has similar positions on standing. He has a similar skepticism of executive power, at least in the form of agency actions, so that I can expect that he will have a similar instinct on environmental cases. Whether he would come out the same in every case of course I couldn’t say and it’s hard to know in advance obviously how he will align himself.
Jan Paynter: Sure. Well, it’s interesting about standing because I know for Justice Scalia the weight was usually on the side of the entity rather than the individual bringing a case so it would appear that during his reign, if you will, or at least his influence on the Court, fewer individuals were able to successfully achieve standing and bring cases before the Court.
Jonathan Cannon: Well, I think for him and then for environmental litigation generally the crucial issue was establishing the necessary harm or injury to meet the standing requirement from an environmental consequence so that he was quick to say, folks who had been injured economically from regulation had standing.
Jan Paynter: Which is the other side of this.
Jonathan Cannon: The question was whether somebody who said, ‘I’ve been injured personally because of some environmental situation,’ that was a harder sell with Justice Scalia. He tended to be quite skeptical of that, as cases like Lujan II show.
Jan Paynter: We’re already seeing that there will be…there’s a large climate change battle beginning to take shape as the Trump Administration moves forward. I want to talk about the direction of the EPA, the likely direction under the present Administration but before we do, share with us a little, if you would, about the history of the EPA, what were its goals at the time of its creation under Nixon in ’70 and how has it evolved over time since your tenure as general counsel.
Jonathan Cannon: Well, the EPA was created by Richard Nixon when he was President. It was created by Executive Order. It was pulled together from pieces of other agencies at the time and was assigned certain responsibilities under that order. Since then it has grown and it has had authorities added through congressional legislation which specifically give EPA the authority to take actions to protect water, to protect air, to clean up hazardous waste sites and so forth and those authorities are the legal basis on which EPA operates today. The current effort to weaken EPA, I’ll put it that way, perhaps that’s pejorative, but to curtail its activities focus both on limiting its use of its authorities and on substantial cuts in its budget so it just doesn’t have the resources to do the things that it has been doing to implement these laws.
Jan Paynter: As a former general counsel on the EPA, what is your view of the statement by EPA Head Scott Pruitt regarding carbon dioxide’s lack of involvement in global warming, which actually contradicts the position of his own agency?
Jonathan Cannon: Well, I think that’s unfortunate but that’s a view that is shared to some degree certainly within his party and it seems to be a view that’s advanced at least by some others within this Administration. So perhaps he’s only voicing Administration policy when he says that.
Jan Paynter: Oh, no doubt.
Jonathan Cannon: I think the consequences are unfortunate for the United States and for international efforts to deal with climate change.
Jan Paynter: Although when he was in Oklahoma, I believe he sued the EPA some 12 times.
Jonathan Cannon: Yes. He was not happy with EPA regulation, particularly as it affected the oil and gas industry.
Jan Paynter: I was looking over some stats to see exactly what would go on were this current Administration to get its way, vis-à-vis the EPA. Approximately one in five EPA officials would lose their jobs, funding for the Clean Power Plan and all climate change research programs and partnerships would lose their funding, hazardous substance cleanup funding would be reduced by some $330 million, 1/5th of EPA’s budget for enforcement of clean air and water would be reduced and Mick Mulvaney, Director of the White House Office of Management and Budget confirmed that the White House has no interest in funding to combat climate change. I will quote him. ‘We are not spending money on that anymore. We consider that to be a waste of money.’ Gina McCarthy, former EPA Head during the Obama presidency, said this. ‘You can’t put America first when you put the health of its people and its country last.’
Jonathan Cannon: Well, I have a view about that. I think climate change is an important issue. I think extending and expanding, strengthening the climate change science is important. I think that’s an important investment. I think taking steps toward reducing greenhouse gas emissions is important. I think doing that in concert with other nations is important and to the extent that the Administration is pulling back on all of those things, I think we are putting ourselves in a hole with respect to our ability ultimately to deal with an issue that I think is a grave one and will have significant consequences for the future.
Jan Poynter: Undoubtedly and this is something I think all Virginians should be concerned about. According to The Washington Post, the Chesapeake Bay Cleanup Project will now receive $5 million, which is actually down from its current $73 million. That’s a big cut and of course lastly, funding for the U.S. Global Change Research Program will be eliminated altogether, which is stunning.
Jonathan Cannon: Well, those are all consequential cuts, if they take place. Obviously the budget isn’t enacted. It has to go through Congress and I think we’ll see some changes. For example, the Chesapeake Bay program is a program that’s developed over time with support from the states in the Chesapeake Bay Basin. They’ve depended on EPA both to provide resources and leadership, which is very difficult for the states in their individual capacities to provide and now the program is actually achieving some real success so to cut it now, to take those resources away I think would be a big mistake.
Jan Poynter: I agree and that was going to be my next question. Do you believe that Congress would approve the cuts in EPA funding and as you pointed out, they have to be codified via congressional appropriations process?
Jonathan Cannon: Well, I think—and I’ve seen quotes from various members of Congress including Republican members of Congress that the Administration submission of a budget doesn’t make the budget, the Congress has to make the budget so I expect there is a lot of work to be done yet.
Jan Poynter: We’ve seen some evidence of that recently. What would you judge to be the effect of shifting the burden of environmental responsibility to the states, John?
Jonathan Cannon: I think that the states should have a lot of responsibility for setting environmental policy and implementing environmental policy and they actually do now. Most of the implementation and most of the enforcement under our current federal environmental laws are done by the states. I think Administrator Pruitt says he wants more done by the states and even less done by EPA. I’m not sure how that works in effect, particularly when you’re proposing…when the Administration is proposing to cut funds available to the states to implement these programs. Ultimately, if you defund EPA and you defund the states, the result is less environmental protection. It’s not just shifting the locus of that protection from the feds to the states, it’s eliminating some level of protection currently provided under our laws and practices.
Jan Poynter: John, now I’d like to talk a little bit about the value of the EPA website, which is obviously comprised of dozens of databases monitoring the U.S. environment and keeping tabs on enforcement. Will the data continue to be available to citizens going forward?
Jonathan Cannon: I don’t know. I hope it will be. I think one of the great aspects of modern technology that EPA has taken full advantage of is this ability to disseminate and make available all kinds of information and EPA’s website does that. I would be concerned if data that’s currently available online were taken off. That data remains a matter of public record and can be accessed through Freedom of Information Act requests but not to have it available easily online is an issue.
Jan Poynter: Yeah, if you put extra steps in there or offer citizens to get to it, they may well not make the effort, which I assume is the point. Also I thought it was interesting, a myriad of U.S. businesses rely heavily on EPA data collection sources to aid their operations, judge efficiency performance and know how to comply with regulations so I would think this would be actually something that would be of great interest to businesses to keep this website up there.
Jonathan Cannon: It certainly can be. It may cut both ways for businesses because some of the information is relating to non-performance as well but on balance I think it’s a good thing overall and I hope there’s not a significant deterioration in that availability online.
Jan Poynter: I hope so. I know some things on that site disappeared and then reappeared when there was a bit of pushback.
Jonathan Cannon: Right.
Jan Poynter: You told The Straight Times that while Trump could direct the EPA to amend or rescind regulations, he would have to explain each case convincingly citing scientific data. Would you elaborate a little on that for us, John?
Jonathan Cannon: Well, let’s take an example. Let’s take the Clean Power Plan, which is the Obama Administration’s signature effort to reduce greenhouse gas emissions from the electric utility sector. That Clean Power Plan was adopted as a rule under the Clean Air Act. It went through notice and comment, it was finally promulgated with a record and an explanation for the decisions that it reflects. To rescind that rule will require more than an executive order. I understand that tomorrow President Trump intends to issue an executive order requiring the rescission of that rule but that executive order itself doesn’t do that. It simply says the President would like to have that done and expects to have that done.
Jan Poynter: Oh, I see.
Jonathan Cannon: But in order to rescind the rule, the Agency has to develop a record to support a new decision, whatever that decision might be, it has to develop a set of legal arguments as to why that decision is proper under the law, it has to provide for public comment, it has to receive the public comments, it has to respond to significant issues raised in the public comment and make that response part of the record and then promulgate a final rule and defend that rule in litigation so that there is a long trip between the cup and the lip here, so to speak, from where we are now to where we would be if and when the rule is finally rescinded.
Jan Poynter: I find that encouraging.
Jonathan Cannon: Well, it means that there is a lot of room for a lot of players to participate and maybe the ultimate outcome will be the same but there is a process and that process will have to be followed.
Jan Poynter: Well, it’s good for the democratic process that those things are in place. John, thank you so much for rejoining us for Part 2 of our program, on the Environmental Movement and we will look forward to you rejoining us for Part 3, the conclusion of our program.
Jonathan Cannon: Well, thanks very much for the opportunity to be here with you. I’ve really enjoyed it. Thank you.
Jan Paynter: Thank you at home for joining our conversation. If you would like more information concerning the topic under discussion today, we invite you to take a look at our website at politicsmatters.org. We will be posting a number of books, articles and relevant links on many of the issues under discussion today there for you. You will also find there a complete archive of prior Politics Matters programs which you may watch in their entirety anytime. We will post extended versions of interviews online on our site as well and continue to add more content. As always, we are interested in hearing from you with ideas and questions for future programming. We encourage you to email us at firstname.lastname@example.org. We are on PBS-WVPT on the second and last Sunday of every month at 11:30 am. Thank you again and until next we meet, I’m Jan Paynter and this is Politics Matters.