Michael Livermore 0:11
Welcome to the free range podcast. I’m your host, Mike Livermore. With me today is Cal Jaffe, the director of the environmental law and community engagement clinic here at UVA law. Prior to joining the law school, he was an attorney with the southern Environmental Law Center, where he led the Virginia office. Hi, Cal, thanks for joining me today.
Cale Jaffe 0:30
Good morning, or good? whatever time it is where you
Michael Livermore 0:34
are a little later in the day. Yeah. Yeah, so maybe one way we could kind of just get started is to is to start with how you got interested in environmental issues. I mean, you know, folks come to, in my experience, folks come to environmental issues in different ways. You know, some folks have early childhood experiences, you know, playing and on the coasts, and that leads to a lifetime of interest in, in coastal ecosystems, ecosystems are some people get involved in politics, because they like politics, and then end up getting attracted to environmental issues for, you know, for various kind of specific reasons. So, yeah, so it’s just curious, what, what drew you to these two these issues?
Cale Jaffe 1:13
Yeah, it’s, it is interesting to think of different folks getting into it from different angles. For me, it was coming through when I was in high school. And as often happens, when folks are in high school, just a good teacher that really sort of sets you in a different direction. And so spring of my junior year of high school, which was spring of 1990, was the 20th anniversary of Earth Day. And I happened to be participating in a program called the Mountain School, which is up in Vermont, it’s sort of set on a farm, and it’s it’s very environmental centered program, or was at a time and I think still is. And it was through that experience, that was actually the first time in my life ever had gone camping. As part of that experience, and the teachers there a particular one teacher, I’ll just have to give a shout out to the science teacher, Kevin Mattingly, who was just so brilliant in connecting all of these different concepts, literature, science, community engagement, just in a in getting us out into into the natural world, that was really the eye opener for me. Really
Michael Livermore 2:24
interesting. And so did you kind of pursue environmental issues in in undergrad, and when you went to law school was that kind of on your mind is what you thought your career path would be?
Cale Jaffe 2:34
You know, I, it was absolutely on my mind heading to law school, I very much went to law school with the idea that I was going to want to get involved in environmental advocacy. And I in fact, I even even though I didn’t know it at the time, when I was sort of going through college and thinking about why I would want to go to law school, I very much had in my head this idea of a clinical professor, even though I had never met one, I sort of liked the idea of like, oh, universities are fun. And that would be a neat place to be. But I really also want to be involved in the advocacy, I want to sort of be boots on the ground on particular project and sort of imagined, like, if there was a way to bounce back and forth from classroom to field, working on the issues you care about, that would be a cool job. And of course, that’s essentially the job that I’ve found myself with many years later,
Michael Livermore 3:22
right? Yeah, that doesn’t happen very often, where people actually end up doing the thing that they dreamed of doing when they were when they were young. Yeah,
Cale Jaffe 3:29
I’ve definitely feel lucky. Yeah. And
Michael Livermore 3:31
so after law school, you spent some time, outside of the of the academy, you worked at the southern Environmental Law Center for a number of years, which is a, obviously a really wonderful environmental organization that we have in our part of the world. And so maybe, you know, I just be curious to hear about some of the maybe formative matters that you worked on an S SCLC, that really, you know, kind of contributed to your development as an environmental attorney now that you’re a clinical law professor, the kinds of experiences maybe that you look back on to draw from, as, you know, as kind of important, informative in your own experience.
Cale Jaffe 4:13
Yeah, absolutely. So southern Environmental Law Center is another, you know, formative organization in terms of developing my own thinking about the issues I care about and how to engage on them. And I would put it with that sort of Mountain School experience that I had as a high school kid. In terms of just important formative experiences. I was at Southern Environmental Law Center SCLC for about 12 years. As director of the Virginia office for the last couple of years I was there. But in terms of really formative experiences, I remember the very first sort of big case that I got to work on when I was there was Environmental Defense versus Duke Energy, which is a case that went up to the US Supreme Court So we have a clean air act enforcement case. And what was interesting about getting put on that assignment was, I had come to SCLC really being more interested in water quality and water advocacy issues, just because it felt to me like that was a good mix of there’s this very concrete tangible thing we’re doing trying to clean him up particular river, but it also felt big enough that it was going to have sort of broader systemic impact. So I liked water work as an as a new guy coming in. But when I got the other, they said, That’s not where we need you at all, we’re gonna put you on this air and energy team. And I had really not a lot of experience in that kind of work. So the first several months for was just trying to learn all these things that frankly, I should have paid more attention to when I was in my environmental law class with John cannon, in terms of just how the Clean Air Act works, and how we’re going to engage on it, attending Environmental Law Institute events to learn more about the Clean Air Act, just trying to get myself up to speed on it. And getting to be a piece of that team. We worked with Sean Donohue, who’s a great litigator and appellate advocate on that project, working with folks at Environmental Defense Fund, just being a part of that broader team was remarkable. And of course, getting to see the case, and help prepare the case all the way up to go into the Supreme Court was pretty cool. Yeah,
Michael Livermore 6:28
that’s an awesome experience as it for a junior for a junior attorney. And those are there really are some great people out there that you are working with. At that time, we were still super active on all these issues. It just, you know, it’s interesting, you mentioned the the complexity of the Clean Air Act. And I think this is a, you know, maybe just a little bit of a side conversation. But you know, I think this is a, this can be a challenge for environmental attorneys. And I’m just curious how it lands free for you, I think there’s kind of like two schools of thought and some level about the complexity of environmental law, one school of thought is like, well, you know, you just have to deal with it, it’s, that’s the way things are, and, you know, so be it. You know, these are important problems, social problems, and we need to tackle them. And if the laws complex, then we just, you know, you plow through it. And then there’s folks who enjoy the complexity, they like the ins and outs, and the, and the, you know, the provisions that intersect with other provisions and the layers of interpretation and so on. So, so I’m curious, which it’s more of an aesthetic thing than an intellectual. Yeah, its intellectual and aesthetic, but it’s not really substantive or normative. But I’m just curious how the complexity of environmental law lands for you, as someone who’s been, you know, actively practicing in this area for a while?
Cale Jaffe 7:45
Well, I think for me, the the complexity of it, and particularly in the Clean Air Act world, or the energy world, it requires if you’re a lawyer coming into that an immense amount of humility, because you realize very quickly, that you are going to have to rely on other experts to help you just understand the most basic aspects of the systems you’re engaging on, to be able to make persuasive arguments. So you know, you think about the Environmental Defense versus Duke Energy case, I remember, you know, we were hiring outside engineering experts to sort of who knew the nuts and bolts of how these multibillion dollar coal fired power plants worked. We are hiring at considerable cost air modelers who could give us incredible insight into how the plumes from the smokestacks would move, and what communities would be impacted by those plumes. There was just this whole world of core information that you needed to have, that you as a lawyer would not be able to develop that you’re going to have to rely on engineers and scientists and modelers, and a whole panoply of experts that, that you are going to have to trust.
Michael Livermore 9:01
Yeah, so it’s so interesting, right? And that’s, that’s on the way that the law touches the world part, right, which is so so incredibly, it’s complicated. It’s very interesting, right? It’s just like, you know, you get to learn some of the science and you get to learn some of this, these modeling questions or engineering questions. You know, there’s another funny thing about that case, right. As you as you mentioned, it, you know, it deals with provision of the Clean Air Act is all this important engineering, technical and economic and social consequences that come out of the of the, you know, the decision in that case, which is of you know, as a kind of interpreting a provision of the act, but if I recall correctly, you correct let me know if I’m wrong. I actually think I teach this class so I don’t teach this case isn’t the case but but um, it’s so obscure the it’s like this funny technical statutory interpretation question about, you know, if you’re interpreting one and provision in one place, how that means that you should interpret the language somewhere else. And I feel like the the court’s decision is just so removed from the real world consequences that you were just talking about, like what it means for the air quality, what it means for consumers prices, what it means for, you know, workers and what it means for local communities. I mean, it has all those important consequences, but it’s not like the court, you know, sits down and does the cost benefit analysis or grapples with all this important, you know, all these important social consequences? It just like thinks in the abstract about statutory interpretation questions? Yeah. Well, one is, am I right about the case, but but the other one is just, you know, that’s a funny thing about being an environmental lawyer, too, is that you, you, you sometimes find yourself making very funny kinds of statutory and very internal to the law and legal interpretation questions, but they have these enormous social consequences. Yeah,
Cale Jaffe 10:58
I mean, I think, right. So it’s this highly technical case, dealing with the new source performance standard program and the prevention of significant deterioration program, and what the term modification means in those terms, which seems like it could be a somewhat common sense term and of course, gets insanely wild. You know, what stood out for me was, I remember being in the courtroom for oral argument. And, you know, I guess we could go back to the transcript of oral argument to see if my memory is correct or not. But I remember Sean Donahoe, who was arguing the case for us, he opened with that the regulations, you know, the sort of the EPA regulations that we were asking the court to interpret Shawn’s opening statement was the regulations are clear on their face. And before he even got to the next sentence, Chief Justice Roberts interrupted him and said, Well, that’s an audacious statement, Counselor. And then Justice Scalia intervened and said, yeah, we’ve been poring over these regulations, you know, for weeks. And, you know, you’re telling us that this should have been an easy case. And just sort of, you know, we were immediately on the backfoot, you know, before we even got through the first paragraph of opening. So, yeah, it’s, it’s, but I think what, you know, it’s this, this sort of the nature of that case, I think it’s the nature of a lot of environmental advocacy, the the firm in the organizations that were representing Duke Energy there, and the result of this large, you know, utility air regulatory group that was also involved, other electric utilities that were involved that had implications for other cases involving Southern Company and other big utilities. They had, obviously, an immense amount of expertise. And what was really fascinating about the case was back at the district court level, was just just mountains and mountains of pages in discovery and documents from the utilities sort of understanding the minutiae of this. And what was clear that case was one, they certainly had a role in making it complex. And it wasn’t that just government bureaucracy run amok, it was the industry very much sort of driving that complexity to serve their own advocacy interests. And yeah, I mean, just to give you a sense of how intense that piece of the case was, my memory is there was 7 million pages of documents in the discovery phase of the case, I mean, just essentially a warehouse full of information. And a lot of it was the industry’s having sort of years of plans on how to delay implementing these what would be admittedly very costly pollution control programs, that the cleaner accurate require. So yes, the complexity is there. But frankly, it’s it’s, in some sense, weaponized by by stakeholders in the process who were trying to delay implementation that would be required through that, that language.
Michael Livermore 14:09
Yeah, it’s also an interesting an interesting point, while we’re on this, the, the the way that the legal system works, in some sense, how at the district court level, you know, it’s this very fact intensive exercise, and the court is pouring, like the judges, like presumably really looking at these complicated documents, and there’s the all the attorneys and the experts, and it’s just a very fact intensive exercise. In some sense, it’s grappling with these real world issues and, and, you know, maybe some of it is manufactured complexity, maybe some of its just the reality is we’re kind of managing very complex systems. So some of the rules are going to be complex and the social consequences are going to be hard to understand, in the first instance, without serious amounts of effort. So that happens at the district court, and then gradually, you know, that the issues get distilled, distilled, distilled, distilled, and the facts All questions, in some sense become blurred or fall away. And then by the time you get to the Supreme Court, we’re, you know, the question gets, gets approached as like at least some of the judges approaches like if it was a transcendental question about the meaning of words, rather than, you know, this, like real world decision about, you know, coal and where it gets burned, and how much and what technologies we’re going to put in place, and people are going to get sick, or they’re not going to get sick and energy prices are gonna go up, or they’re not gonna go and all that real world stuff. That is really what we’re argue about. We’re not, you know, we’re not arguing about the meaning of the word modification, because we’re interested in the platonic ideal of the word modification, right? We’re interested in arguing about it, because it has real world consequences. So it’s just an interest to it isn’t. And you’ve I’m sure you’ve just seen this many times over the years of, you know, this fact intensive, complex thing that we’re dealing with kind of gradually turning into some very obscure, it’s in some sense, legal question.
Cale Jaffe 15:58
Well, and there’s a real art to that. Because in the district court case, and the district court stage of the case, of course, the court has no choice, they have to deal with it, you know, you filed the case. As long as you’ve got jurisdiction and venue and all that squared away, they’ve got to deal with it. The Supreme Court, of course, has the freedom and the discretion to you know, handpick the cases that it finds interesting. So, when you’ve been eyeballs deep in the weeds, it’s very hard to think about how do we abstract this case out to a point that the justices or more specifically, the justices clerks, would find it interestingly enough, interesting enough to sort of move it up the, you know, to where it might, we’re certain might get granted. And that’s, you know, I’ll give, I don’t remember the specifics of how he tweaked the, the question presented that we drafted in our cert petition in Environmental Defense versus Duke Energy. But I remember I was working on it, sort of deep into the weeds on it, other attorneys at SCLC. Were working on it, Vicki Patton at Environmental Defense Fund was working on it. And then Shawn was brought in, and he just had a very, a completely different way of thinking about the case about what it was, that was just not something that had been in my mind at all. It was very abstract, much more of an administrative law case and a due process case and not a cleaner act enforcement case. And of course, that’s exactly what you needed for a cert petition to get granted. You know, if we had stayed in the weeds and just drafted what we thought the case was about, the court would have thought, oh, hell, no, we’re not digging into that mess soaring.
Michael Livermore 17:41
Exactly. Yeah. Funny. Yeah, that’s, that’s a real skill. And it’s, and it says it’s true. It’s really interesting. And that’s the value of working in teams, of course, and lawyers are always doing that, and bringing in people at different stages. And, yeah, it’s really, really interesting kind of practical experience of how you do this stuff. So So over the course of, you know, your career, and you know, especially if you go back to, you know, even longer like your your kind of environmental awakening in high school, there’s been a real shift in the environmental movement towards a ever greater emphasis on environmental justice issues. And, you know, we could we could talk about whether there’s enough emphasis now, I mean, likely, many would say no, but it’s a lot more than it used to be. And, you know, that’s been a process that’s been going on for for quite a bit of time. And a lot of people put a lot of effort into this. And there’s been contestation. And you know, this has just been an important part of the conversation on environmental issues over the last couple of decades. So I’m curious about how that has tracked with your with your own career and your your interest in environmental issues. And then, and where, you know, now you have a serious interest in environmental justice. You know, where does that where does that intersection start to become important for you? Yeah,
Cale Jaffe 19:02
you know, well, I’ll start with sort of a story of sort of how I began to think about environmental justice before I even had heard that term. Of course, the you know, it dates back to, you know, sort of the birth of environmental justice, environmental racism, activism, going back to Warren County, North Carolina, in the early 1980s. In the communities protest over a toxic waste landfill in the county. You know, so that was obviously well, before I had gotten into the issue into environmental law at all, but was not something that was really aware of for the first several years of my practice. I’ll tell you one story about it. So shortly after the Environmental Defense Duke Energy case, around 2007 2008 We were working on another proposed coal plant case this was going to be a new coal plant in a rural southeastern County, Virginia Surry County. Only Virginia. And there was, you know, the plant would have been in this tiny little town called dendron, Virginia, about 300 people. And there was a small community group that was forming, you know, unincorporated association of folks, neighbors who were concerned about this proposal. And they had sort of reached out to us and to other environmental groups. And there have been grassroots activists engaged, and they were going to organize a house party and one of the sort of leaders homes in the town of dendron, in Surry County, and wanted us to come down, it was going to be a potluck, bring, you know, bring us some food and come on in. And I was young, up in Charlottesville, working so up to the last minute right before this meeting, raced out realized, Oh, I’d forgotten to bring any food, pulled over, bought some doughnuts at a roadside Dunkin Donuts, and then made my way there. And when I got there and sort of left the doughnuts, and I gave my spiel. And then I left after giving my spiel about sort of what the legal issues were. And given them some recommendations, I realized that everything I had done had just been completely tone deaf, like they were irritated with me, they thought I was arrogant. They thought I was disrespectful. They thought bringing doughnuts, as opposed to actually making a meal was disrespectful. And it was sort of this good lesson in humility, that essentially, what I had done was sort of one small, little gesture or after another, was send this message that I thought of myself as the expert and I was parachuting in to direct this case. And that’s not what they wanted at all. They were they were the experts, it was their community, they knew what was at stake. I didn’t live there, I didn’t appreciate the risks. And I needed to have gotten there early in the day spend more time with him, do more listening, less talking. And that was sort of I didn’t label it environmental justice at the time. But essentially, that’s what that was, this was a community that was going to be directly impacted. And I was approaching it from a very top down hierarchical approach that was just absolutely wrong.
Michael Livermore 22:09
What so what ended up happening with, with the, with the proposed power plant level, it’s kind of as things unfolded in that in that matter. You
Cale Jaffe 22:18
know, it was really fascinating. The case move forward, we continued to engage primarily on the environmental permitting side of it with the department environmental quality. And meanwhile, as we’re engaging on that on a whole host of issues from the Mercury and Air Toxics standard, that the Obama administration was working on, on whether on best available control technology and whether greenhouse gas emissions would be covered by a backed standard or not, you know, we’re sort of getting, we’re doing what we do as environmental lawyers sort of pressing D cubed power and environmental quality on all those questions. Meanwhile, outside of our control, the price of methane gas is falling. costs of building a new coal plant are rising. And so after a couple of years of this, the the power company, I was proposing that facility Old Dominion electric cooperative, ultimately decided to withdraw. They did, they didn’t end up building the coal plant in Surry County. So in that sense, it was a win for our clients and win for the community that we were supporting and win for us, they did end up building a gas fired power plant, I think in Maryland, to sort of meet their anticipated need. And obviously, there are a host of issues there that we did not get into because we weren’t working in Maryland. But so it was a victory in that sense. But there’s one great story that I’ll share about the case. That’s another sort of lesson in humility on sort of environmental justice on the front lines. One of the local zoning issues required that uh, for that the county or in the town rezone to allow this multibillion dollar industrial facility to come in, they had to under state law notice that decision, at least two weeks before the meeting. And the county had failed to do that. We had this meeting, it was in the was actually in the garage part of the fire fire station because they didn’t, that was the only physical space they had that was large enough to hold all the people so they moved that the fire trucks out and we sat through one folding chairs in the fire station. And there were a couple of us who were at that meeting who sort of raised the point that they had not properly noticed this as a decision making event that they had to. They couldn’t actually rezone tonight they had to do something else. And they disagreed. They got advice from the power company lawyer that said they could go forward so they voted to rezone and then immediately the local community group said, Well, you guys gonna sue them over this decision? And I said, No, I don’t think that’s really a great use of our time. Because frankly, all I have to do is just re notice it and vote two weeks later. And our case is moot. Like, let’s not waste our time on that. But one of the local folks disagreed is this guy who was a blueberry farmer. And so he filed a pro se case challenging the zoning. And instead of just moving the case, by Re noticing the hearing and voting again, two weeks later, the law firm representing the power company, litigated it for several months, and ultimately lost. And they like they, they spent a ton of money, they’re fighting this guy who’s just trying to figure it out, per se. And I was just sort of, it could not understand and it was just all about hubris, it was this, let’s we’re not going to admit having made a mistake, especially to this blueberry farmer who’s trying to tell us that it was our mistake.
Michael Livermore 25:51
And did that end up like, so they spent all the money on litigation? Did it end up? You know, like, was there stuff that happened that they had to then go read them? And obviously, they had to redo that meeting, but then did they have to go redo other stuff like that it actually ended up kind of throwing a monkey wrench in the works.
Cale Jaffe 26:08
I mean, I, it’s hard to know how big of monkey wrench to get through, but it absolutely impacted because it delayed moving forward on the project. You know, they couldn’t do any, you know, they couldn’t do anything on the land until they had gotten the zoning cleared. Of course, they were still way behind on the environmental permitting phase. And maybe they couldn’t have done anything anyway. But it absolutely added to their cost. They’re paying, you know, Richmond Law Firm rates to litigate a matter that they shouldn’t have been litigating. Right.
Michael Livermore 26:38
And also just the complexity and the uncertainty. And there’s just like one more kind of front in the in the fight. Absolutely. Right. Yeah. I love that. I love that story. So yeah, so. So those are Yeah, that was really interesting illustrative cases of, yeah, like the lessons in humility, right. So that was a strategic, the first one was kind of like, you know, just a, kind of what’s the right attitude to have as you come in. And it’s, and, you know, it’s kind of you to offer the, you know, the stories, and they’re there, they’re representative, right, they’re not like, it’s like, this was a, this was your personal failing, this is the kind of indicative of how the whole, you know, environmental movement was certainly was perceived for, you know, for a long time. And I think even to a certain extent, still is. And, and that’s something that a lot of people are working very hard to change. And so, so yeah, so that, so maybe we could, maybe we could shift a little bit to the, to the clinical context and what you’ve been, you’ve been up to recently, and then maybe talk a little bit about how in teaching, you take those lessons, and you know, impart them on to the students. So after SLC for, you know, several years in directing the Virginia operation, you decided to kind of switch over to legal education, but also with this, obviously, with this advocacy component to it. So So what drew you to that you said earlier, it was kind of your dream jobs to being on a university, but also, you know, also engaging in advocacy? Obviously, you’re doing great work at SCLC. What What was it about being at a university setting that that drew you away from that, that also a great job?
Cale Jaffe 28:17
Yeah, that’s it? It’s a really hard question. I think I really like um, the thing that is a lot of fun about a university is getting to work with, you know, people, like you, Mike, is getting to just be around this very intellectually diverse and intellectually curious group, obviously, I think, the lorries that SDLC are obviously incredibly intellectually curious and incredibly smart, folks. But it’s just sort of the freedom to, to go wherever your interests drive you. So you know, I think of the projects that I bring into the clinic as really needing to serve three, you know, three missions, one is obviously sort of the pedagogical mission, the teaching mission, they need to be good projects for students to learn how to be lawyers. So that’s number one. Number two is I think they should serve obviously, a public service mission, where it’s a pro bono clinic, we’re not charging our clients anything for the legal services we provide. Maybe they should be worried, you know, you get what you pay for. But they’re getting free student labor on these projects. And so there should be a public service mission. And then the third piece, which is really the piece that I think distinguishes it from Southern Vermont Law Center work, is picking projects that are intellectually interesting to me that are academically interesting, you know, where, oh, this is something I’ve read about and I’m curious about it, and I don’t have to worry about, well, here’s our we have an organizational mission, that it’s very specific and you’re on our air and energy team. And so you can only work on air and energy cases. And that’s it. You know, I get to bounce around. So I’ve worked on an environmental justice case. is involving landfill in Cumberland County, Virginia, I’ve worked on a circular case, at of Montana, I’ve worked on Clean Water Act cases, I’ve worked on Public Utility Commission cases. So it’s just, you know, maybe I’m falling into the trap of, you know, jack of all trades, master of none, but I’m getting the, that is the thing that’s really different about working in a clinical environment at a university setting that you don’t get, that you don’t really get, if you’re in an NGO, working as part of sort of a mission driven organization, and you have a specific role to play there, here, you’ve got a little more freedom.
Michael Livermore 30:39
Yeah, that’s really interesting. And, you know, it makes, it makes a ton of sense. And I totally see that the the fun in that, right. And then just the intellectual stimulation, and also like, there is something just very different way. Whereas in some sense, you know, every organization like SCLC, or Environmental Defense Fund, or justice, or, you know, I mean, for outside the environmental domain, for that matter, the ACLU, or, you know, any advocacy organization, they, you know, they have limited litigation resources, they’re only going to be able to take some cases, right, and the way that a lot of the, you know, the NGO world, the advocacy world is going to do that is they’re going to be looking to like maximize their impact on a specific set of kind of broader policy goals, like, you know, the Sierra Club was, was funded with a big grant from the Bloomberg foundation to shut down coal fired power plants, or stop coal fired power plants from being built. And so then they’re going to pick cases that align with that in a broader kind of strategic mission. Right. And, you know, the ACLU is going to, you know, pick up certain kinds of, say, First Amendment style cases, or whatever their kind of broader institutional missions are. Whereas with the clinic, there’s the there is the public service mission. But that’s a it’s a little different, right? It’s not like, if this is about you pursuing some particular ideological, you know, or broader policy agenda. I mean, obviously, it’s kind of generally stuff that’s good for the environment, and whatever. But it’s not, it’s not like you’re like, Okay, we’re going to use the clinic resources to do impact in this particular area. It’s, you know, what you want to work with groups who, who might otherwise struggle to find legal representation.
Cale Jaffe 32:25
salutely, I mean, we get a lot of cold calls of folks sort of looking for help. And so that’s sort of where almost all of the work generates from is from those sorts of cold calls. And then, and then talking strategically, the other thing I would say about sort of the way NGOs work that is, is, you know, I totally understand it, and it makes for more effective environmental community or advocacy community, but can be a little constraining is it’s not just that an organization will have its own mission, that it’s, you know, it’s charted out a 10 year plan of here’s how we’re going to get here. And here’s how we’re going to fund it. And here’s where we’re going to make our impact. But they’re also incredibly mindful of what their their coalition partners are doing. And so you might say, well, maybe we’re, you know, so you know, where it comes up, I think, where you really see it right now in the environmental world is on nuclear power. There are some groups that are very clearly opposed to the development of nuclear power, either continuing to operate existing aging nuclear fleet, or expanding and building new nuclear units or investing in small modular reactors, whatever might be, there are some groups that are very opposed to it’s moving that direction, as part of a climate strategy. Other groups, I think, internally are probably more open to nuclear as a as a core component of a climate strategy, but are mindful of not wanting to step on the toes of their partners. And so everybody is just sort of, you know, out in don’t know, somehow sort of holding themselves back sort of restraining themselves from engaging on an issue, because of their partners, strategic plans. And that kind of coalition advocacy is important. I think it’s really helpful when sort of the environmental community writ large, speaks with one voice on the issues of greatest concern. But it can also be very frustrating when you have a different vision of what you think the community should be doing. But you’re constrained by what the broader coalition is trying to do. Yeah,
Michael Livermore 34:27
that’s really, it’s really and that’s a very interesting dynamic, too, because you could kind of imagine two different views on this, like, on the one hand, it’s good for there to be kind of a bit of a lockstep amongst environmental groups. It might actually be worth articulating why that is actually from an advocacy perspective, because I think some folks will, might initially just say, Well, that sounds terrible, right? That sounds almost like totalitarianism thing, right? Like everyone has to agree about everything and and you know, wouldn’t wouldn’t it be better if we had like a diversity of voices and lots of different, you know, different groups that held different positions, and some were pro nuclear, and some were against nuclear or whatever, and some, you know, favored distributed generation and some whatever, you know, whatever the issues were. So maybe just I think it probably be worth articulating why it is that there is value in this kind of cohesion within the environmental community in terms of their political messaging and advocacy?
Cale Jaffe 35:26
Well, I think there are two reasons why there’s strategic value in having a unified front. One, you know, the most obvious is it gives you more, you know, more resources to push in one specific direction. So you’ll have a grassroots group that’s able to turn folks out for public hearings, you’ll have legal groups, you’ll have groups with sort of in house, economists or scientists, you know, sort of this broad range of groups, all rowing in the same direction can be helpful. But the other reason that I think is, frankly, probably more important is that the rest of the world, the regulated industries that you’re offering, going toe to toe with the legislators that you’re trying to lobby, the media that’s covering all this, they are going to write about and think about the environmental community as a monolith. And I saw this all the time, I did some state level lobbying at Southern Vermont Law Center for a few years when I was there, and you’d go into a committee room. And if there was one environmental group that supported a bill that the rest of the community opposed the committee members, the legislators, and the committee would say, well, we’ve got, you know, this is a consensus bill, we’ve got environmental community supports it, the industry supports it, you know, everyone supports it, even though it was a minority, one environmental group supporting it in opposition to others. That was all they needed, they needed one group to sign off. So they could say they had the environmental community support. And if another group got up at the hearing and said, Actually, we oppose the bill, the response would be well, you know, you, you know, we know, you can’t please absolutely everyone, there’s always going to be some sort of dissenters, but we’ve got broad support, and we’ve got the environmental community. So if one group breaks away, that makes it really hard for the other groups to continue to sort of get their message out. Yeah,
Michael Livermore 37:20
that’s really interesting. And I think part of the dynamic on this is, you know, environmental organizations that some sense, don’t have like the same kind of power that, you know, other interest groups have, it’s a very different kind of power they wield, obviously, they have a lot less money than a lot of the times the folks they’re going up against. But, you know, one of their major sources of power is the ability to say like, this is or is not good for the environment, right. And then the public cares about what is or is not good for the environment. And in a lot of these issues, as you know, are like super complicated. So it’s not like a regular person walking around can understand whether a particular piece of legislation or you know, a regulatory decision is, you know, good or bad for the environment in some broad sense. And so if the, if there’s a mixed message coming out of the, quote, unquote, environmental community, then that ability to kind of deem something, you know, an okay, compromise, or a totally inadequate selling out of the environment is itself, you know, kind of undermined.
Cale Jaffe 38:23
Yeah, absolutely. And I think what folks in the environmental community sometimes may fail to appreciate or maybe they do appreciate is that they were still have a lot of work, environmental groups still have a lot of work to build that through broad credibility across the spectrum of folks making decisions or engaging on issues. There is this really, somewhat dispiriting frankly, study that came out a few years ago 2019, at of the Duke University’s Nicholas, Institute for Environmental Policy, on understanding rural attitudes towards the environment, and it was just, you know, sort of polling data that environmental AF advocacy groups were seen by survey respondents as a trusted source of environmental information by only 13% of respondents. You know, that it was sort of this sobering reality that that’s part of why we need, you know, to the extent that we’re bickering or disagreeing, that’s only undercutting that that meager support even further so there’s a there’s a, there needs to be a significant concerted effort to raise that percentage.
Michael Livermore 39:45
Yeah, it’s a disaster. I mean, it’s no that’s a whole other interesting line of, of, of the kind of path that we could go down is the the way that the environmental community is kind of seems to have lost the confidence of a substantial chunk of the The American people, it has the confidence of another group. And we should say, in fairness there are, you know, if you polled a different group, you would get a much higher number, right? That’s a very specific group of people. But it’s, but it’s, but it’s a major, it’s a major challenge. Thinking about this, you know, this notion of kind of, kind of the environmental community and, and kind of coherence, that environmental justice. And that has been a part of this dynamic over over the last 30 years. In some sense, the environmental environmental justice movement, I think, said, we’re not going to go along with, with all the big green groups, like a big part of there was a big part of the environmental justice kind of when it really burst on the scene. And at some sense was when they, when they said, Look, we don’t like how the big green groups are doing business, we think there’s they’re not paying attention to the right issues. They’re not the composition of their leadership. And the the folks that were staffers there, we don’t think is is reflective of our communities. And they kind of had to be willing to break ranks in some, you know, in some sense and point out these internal problems within the environmental movement, as, as just a necessary precondition of getting the kind of changes that they were interested in. Yeah,
Cale Jaffe 41:19
yeah. And, you know, and I may have it wrong, but you know, the emergence of even the term, the big greens, you know, in comes sort of, in that same moment of thinking of not, you know, it must have been a bit of a shock, if you’re at, you know, Sierra Club or Natural Resources Defense Council to think you’ve been this positive force, public interest force, and now folks that you thought of as allies are referring to as big greens in the same way that you might talk about big oil. And that’s got to be a bit of a wake up call. I think what the environmental community has struggled with, is to really break through on the environmental justice issue, you really need. And there are a lot of folks who have fled on this I’ve talked to I was at a conference last year, where I ran into Abby Dillon, who’s the the president of Earth justice now, and she is amazing. And she absolutely gets this in terms of leading Earth justice, on environmental justice issues. But it really requires a deep level of humility and a deep level of listening. And what that really means is, you’re not just going to community meetings, you’re not just going to Surry County with your with your box of doughnuts, but you’re actually listening to them and taking direction from them. So that you may come into an issue with an idea of sort of how we’re going to engage on or what’s important to do. But you need to be willing to set that aside and really follow the community. And just, you know, it’s hard because I think for lawyers, we spend so much time thinking about what we’re supposed to do, you know, okay, let’s meet with a client, learn what their goals are, and then boom, we can move in, we can seek a, you know, a TRS temporary restraining order, we can, you know, we can go for money damages, you know, we’ve got all these different strategies that we’re going to jump on right away. And there’s really not much in the lawyers playbook of listening for listening sake, just sort of sort of having the patience to let that sink in. I’ll share, you know, so this one case that we’re working on here in the clinic, involving Cumberland County and this proposed landfill that is immediately adjacent to this historic African American school that was built by the black community in Cumberland County in 1917. At a time, when public schools were absolutely closed to children of color, they were barred from attending. So it the community builds this own school almost entirely on its own, with some help from the Rosenwald fund but almost entirely on its own, maintains the school all the way up until 1964. Civil Rights Act when finally, public schools begin to being open to children of color in places like Cumberland County and elsewhere. But anyway, so we’re working to help them preserve this school and resist the impact of a proposed mega landfill on a land that’s immediately adjacent to where the school is. And we’re working on this and I was talking with the leader of the of the community group, who this woman Muriel Miller branch who is a student at Pine Grove Elementary school that has the the black community built school in the 1950s. And I had said something to her about pledging that I’ll pledge to keep listening to whatever she has to say. And she emailed me back and I printed out her email All, she said the most powerful words spoken in this entire thread are I pledge to keep listening. That’s all my community has ever asked to be heard, to be valued and to have equal access to resources. We don’t mind doing the work. But when our two centuries of hard work is overshadowed or devalued, it is incumbent upon me, as one of our community, storytellers to correct the record, thank you for giving my community that platform. And what stands out to me about Muriel’s email there is, you know, I’m thinking, I’m this lawyer, I’m going to come in and help her sort of navigate this complex environmental planning process. And she’s not mentioning any of that, like, she’s the only thing that she says that she is looking for, is to be heard, to be listened to. And so it’s like, oh, wow, I’ve completely misunderstood. what my role is an environmental lawyer is that sort of what I’m learning by engaging on these environmental justice cases is thinking about just what my role is.
Michael Livermore 46:04
Yeah, that’s it’s a, it’s a really powerful case. It’s a powerful story about this, about this, the importance of listening and the importance of which she just note, and we’ve had other podcast guests, when we’ve talked about the environmental justice movement over the years, Gerald Torres is who I’m taking up specifically, talking about this. In that other conversation, we were kind of talking about the procedural versus substantive questions, and environmental justice as it is it kind of is the main focus about ensuring substantive justice and fairness and in kind of outcomes, or is it about, about a process that’s open and inclusive, and where people’s voices are respected in this room for people to, to have their voices heard and their stories told, and or to tell their stories. And so and that’s always been a big part of the environmental justice movement is, is focusing on both of these things, both substantive outcomes, and fair and inclusive processes. And so what you’re describing is kind of that, that reality, in a very concrete situation where we’re talking about, it’s it’s not just about the outcome, obviously, the outcome matters with respect to this landfill on this historic school, but the process of getting to the outcome, you know, if if if someone parachuted in and didn’t listen to anybody and just adopted a litigation strategy, and and even if it was successful, that wouldn’t, that’s not what folks are looking for.
Cale Jaffe 47:32
Yeah, absolutely. And I would say it’s process, obviously, you know, this is essentially what you just said, but it’s processed with substance, you know, what you see from it, you know, whether it’s this project or another project is the sort of the regulated industry that’s proposing something all the time you hear, you know, folks on that side, say, Well, we are listening, you know, we’ve, we’ve had so many different community events, we’ve had so many public listening sessions, you know, of course, we’re listening to the community. And you think, Well, no, you’re not because you, you haven’t been willing to reconsider every aspect of your project in response to community concerns, including maybe concluding that, wow, this isn’t the right place for this kind of project. Like, really sort of that connect community engagement requires giving everybody an equal seat at the table. And an equal seat means that have just as much saying what the project look like, looks like as the company that’s proposing it, that is, that’s a hard thing for, for anyone to essentially give up that level of control. But I think that’s what’s really required when you talk about process, and it’s not just about, we’ve had this many listening sessions, therefore processes done, we’ve checked all the necessary boxes, it’s it really is about how the substance comes through that process.
Michael Livermore 48:54
Right. Now, that’s a that’s a really important point that, you know, and this is something you know, this comes up in law more generally, right? Like, when you create an environmental impact statement, you can, you know, an agency that wants to move forward with a decision or a landfill for that matter. And they create a huge document that details all of the negative environmental effects, and then doesn’t change. You know, they don’t have to under the law under the, under the National governmental policy act. They don’t have to write it as long as they say that what the negative consequences are going to be. Obviously, there’s other environmental laws, but but, you know, some sense process for processes sake or listening session, what is it? Well, we even say like a listening session where you don’t change your mind about anything, is maybe a little it’s a little bit of a misnomer. It’s more of a talking session, right. And so, so yeah, that’s a really important point. It’s about it’s about substantive outcomes. It’s about process, but we’re process in means power to it doesn’t just mean an opportunity to learn really stand up and say your piece and have someone sit there. But it means that you’re you actually have genuine influence and power over the outcome. Yeah,
Cale Jaffe 50:12
that’s, that’s I love that phrase. My process means power. That’s I think that’s exactly right. That’s a perfect way to phrase it. Yeah.
Michael Livermore 50:23
So, so yeah, so one of the questions that this brings to mind are this kind of notion of listening to the environmental, listening to the folks you’re working with, basically, right, when you’re in your clinical context, and you’re representing a community group, or, you know, whatever that kind of situation is, that over the years, you’ve learned that, you know, the fewer preconceived ideas you have, and the more you’re listening and responding to the needs and articulated, you know, desires and goals of the community, the better, the better, you’re gonna serve your your role. I’m just curious about your thoughts on how this fits in with the environmental movement more generally, right? Because, as you noted, you’re in a bit of a privileged position as a in the in the clinical context, right, you can you choose the matters that you’re going to work on, based on, you know, you have these kind of criteria of good for the students. You know, good for the community in some, in some broad sense, also, intellectually interesting. And, and it doesn’t have to be a, you know, kind of fit into as a cog in a bigger strategic machine. Right, in some sense. Whereas, you take Sierra Club or, or justice or SDLC, or any group, they very understandably, have a bigger strategic set of goals, right, they’re, you know, they want to improve air quality, or they’re trying to address climate change, really big picture things. And any, what they would ideally want, I think, is for any particular matter that they’re working on, whether it be litigation or legislation, or regulatory thing, or whatever it is, you know, there’s, there’s an ideal that it would fit into the strategic picture. And then you could say, Okay, this is the grand plan. And this is how everything that we’re doing fits into the grand plan, right. And in a sense, there’s something there’s, there’s some conflict there, between having that grand plan where everything fits together, and the kind of listening forward, you know, bottom up work with the community. Exactly, listening for listening sake, and letting the community you know, direct the show, to a certain extent, it’s not just listening. It’s also like, what they want is going to kind of be the way things work. And even if that doesn’t fit in with your grand strategic plan, so yeah, so how do you think the the big groups manage this? Or what do you think the good way to, to kind of think about this stuff is?
Cale Jaffe 52:52
Well, I think, you know, part of the way to think about this is, is to sort of see that it’s a challenge across the board. It’s not just, it’s not just about fights against, you know, greenhouse gas emitting industries, or landfill companies. It’s, it’s something that pops up everywhere, so you can have maybe a more holistic strategy to it, I’ll just give you what I’m thinking about in terms of where it pops up in a slightly different context is I was this is back when I was at Southern Vermont Law Center, and we were supporting a proposed wind farm in sort of far south in the Coalfield region of the Commonwealth of Virginia, right near Bluefield, West Virginia. So right on the West Virginia, Virginia line, and the we thought this is great. This is, you know, environmental community had turned this, you know, adjust transition project. Whereas if we’re going to transition away from greenhouse gas polluting resources, we need to help sort of those sort of Coalfield communities transition to other options. And here’s a wind farm that they should support. And it was running into problems. That was I won’t name the developer of the the wind farm, but they sort of parachuted in, and ultimately, the local zoning that had to be changed, at least at this time, maybe things a bit forward in the years since I’ve left, but the local zoning was they rejected that change. And one of the issues that one of the supervisors who mentioned at this republic hearing on it was a complaint that the executive for the company developing the project had flown in on a private jet to come to the meeting and then flown back out and didn’t spend a night in the community. I mean, it’s not a factor that is frankly, irrelevant to the local zoning decision. Whether the applicant is has spent a night in one of the local motels or not It’s not part of the law. It’s not Yeah, it’s it’s not a legally defined consideration. But it was obviously important to this particular supervisor in others. And it was a great example of, wow, we’re supporting this wind farm, and this Coalfield community is resistant to it. And part for the same reasons that we’re seeing in, you know, in the coal plant in southeastern Virginia, or the landfill project, or any of these other projects has that same problem, that it’s not just about polluting industry versus environmental interest, it’s, it’s sometimes it’s going the other way. And so there has to be some sort of broader, holistic mindset that we adopt, that’s going to work, regardless of what the different, you know, problems are on the ground.
Michael Livermore 55:47
Yeah. Yeah, that’s really, it’s a really interesting story. And often, it just, it puts me in mind of the, you know, these narratives that inform, you know, just a lot of how we structure our, our lives and our advocacy and, you know, fundraising and kind of the, there’s a, there’s a lot of us versus them out there. And to a certain extent, that has to be and it’s, and to a certain extent, attracts reality, but, but it can also be kind of dangerous, because, you know, when you adopt that kind of mentality, then, you know, some, you know, collateral damage becomes Okay, right? Oh, it’s like, okay, this community isn’t happy with this wind farm, but like, so what we’ve got to make a transition here, right. And in that might not be actually, you know, good. It might not be good for for various reasons, right. It’s not, you know, fair for the community. It’s not probably good politics at the end of the day. And it but it’s hard to get away from those narratives. Yeah,
Cale Jaffe 56:48
there’s a little book by Shalonda Baker, who’s now in the Biden Administration called revolutionary power. And she uses the term she talks about a bunch of these sort of environmental justice cases in the climate context. And she uses as a pejorative term, the term climate, fundamentalists, you know, folks who just are so focused on decarbonisation, and, you know, if a local community doesn’t like it, so what we’ve got to make that transition, and, you know, when I first read that, that book, I thought of myself as like, well, you know, I sort of think I’m a climate funds. I mean, like, it’s a pretty big freakin problem
Michael Livermore 57:27
in fairness, right? It is a big deal. That’s right. Climate change is not, you know, just a trifling matter.
Cale Jaffe 57:34
Yeah. So how that I mean, I haven’t fully wrestled with that of, okay, I get it, I, you know, you know, Maricopa have done a bad job of listening for listening sake, I need to work on that need to bring humility to that. But I’m also can’t shake this voice in the back of my head that’s, you know, reading the latest, you know, summary for policymakers from the IPCC and thinking, Oh, my God, we really do need to be climate fundamentalists. Right.
Michael Livermore 58:06
This is an emergency. Yeah, it’s a hard balance. It’s a really, really, really tough balance. So I’d be we’d have a couple more minutes. Thanks for spending so much time with me today, Cal. So I guess my final question would would be, you know, in teaching and and working with clinic students, like how do you, you know, how do you think about how to kind of impart these lessons, obviously, you don’t want the clinic students to make all the mistakes that the environmental community has made over the years? You know, is there a way that you structure the clinic or structure the relationship that the students have with clients to try to kind of build some of these insights into that educational experience that they
Cale Jaffe 58:46
have? Oh, I’m, I’m so glad you asked that, because that was, as I was sitting here thinking the one thing I hadn’t talked about yet was the teaching. And, of course, that is a huge motivation here. It’s so much fun to get to work with students, you know, sort of young people sort of at the earliest stages of their career, certainly after college, maybe a little bit, you know, some with more experience than others. But they’re coming in here. Really, just trying to figure out where they’re going and how to get there. And that opportunity of just sort of teaching. It’s been so much fun about this job. I have our former colleague of ours here at University of Virginia, Toby Haydn’s who’s now a federal appellate judge, I remember at his investiture when he was sworn into as a judge on the Fourth Circuit. One of his colleagues sort of said that Toby’s teaching philosophy was essentially just you need to genuinely like your students really like them. And they need to know that it’s just that simple. And I think that that’s absolutely right. That you know, that’s for me part of the fun is, you know, I clinic setting I get to know a small group of students pretty well. Well, because we’re not just sitting in a classroom, we’re also working on cases together meeting sort of, you know, for strategy sessions outside of the classroom, meeting with traveling to meet with clients. And you get to genuinely really like all these, you know, young budding law students, and I think my job is just simply to, to let them know that that, that I’m excited for them, that and they’ll sort of find their way from that, you know, I can sort of share whatever insights I have from my own experiences. But another way of thinking of it is I recently there was a, I’ve recently read the obituary for this wonderful art teacher that I happen to know, from my high school. He died not that long ago at age, I think 89 or 90. But in his obituary, it wrote that his teaching philosophy was just simply that he saw the light in his students and reflected back to them. And I think there’s, you know, I know I’m not teaching high school art, we’re teaching at a professional school trying to prepare people for complex career, but I think there’s still some of that simplicity of of seeing the light in our students and reflecting back to them.
Michael Livermore 1:01:12
Well, that that sounds that sounds great. That sounds that sounds totally right. And and yeah, it’s a great it’s a great way for us to end the conversation today. Thanks. Thanks so much for for chatting with me and all these really super interesting insights from your career and thanks for all the work you’ve done on these issues over the years
Cale Jaffe 1:01:29
thank you so much for for letting me sit on on the podcast I’m been a you know, as they say in talk radio longtime listener first time caller, so I’m excited to
Michael Livermore 1:01:40
be here. Yeah, it’s been fun having you on. Thanks. And listeners. If you enjoyed this episode, let us know. You can give us a like rating, subscribe to the podcast and follow us on social media. It’d be great to hear from you. Till next time
Free Range Podcast 