Our Secret Weapon, Attorney Vickie Patton
Our Secret Weapon, Attorney Vickie Patton
SUMMER 2020
Prepared for EDF Members
an EDF hallmark.
Vickie will never tell you this herself, which is one reason her staff holds her
in such high regard. Inside EDF, she is known for her tenacity, her brilliance
as a legal strategist and her warmth. Vickie took some time from her busy
schedule to talk about the high stakes in our ongoing legal battles with the
Trump administration.
When considering law school, I did not know the strongest programs in
environmental law, and in fact I didn’t even know any lawyers. But I did some
research and found an outstanding program with a strong commitment to
public interest law in New York City, at New York University.
Early on, I went to one professor’s office and said, “My name is Vickie,
and I want to learn everything I can from you about environmental law.”
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That professor, Richard Revesz, has remained a mentor for more than 30
years. He is an extraordinary person, leads the venerable American Law
Institute, founded and leads the Institute for Policy Integrity and has had a
transformative impact on environmental law and policy. In 2013, Supreme
Court Justice Elena Kagan called him “the best law school dean of the last
decade.”
While in law school, I also worked at the EPA during the summers, and went
straight back after graduation to the agency’s Office of the General Counsel. I
stayed for eight years.
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I was inspired by the professionalism and expertise of EPA’s staff and how
devoted they are to protecting the environment. Many of the people I worked
with are still there, carrying on the fight in the incredibly hostile environment
of the Trump administration. When I started at EPA, the agency’s
administrator was the extraordinary William Reilly, who was appointed by
President George H.W. Bush and was devoted to a clean environment and
the effective management of the agency. Today we have Andrew Wheeler,
a former coal lobbyist who is undermining almost every environmental
protection.
In the beginning, there was so much work, it was all new. It was so high-
impact. It was a wonderful opportunity for me as a young attorney to grow
and learn. It probably wasn’t so good for the country to have someone so
inexperienced working on these issues!
The Navajo Generating Station coal plant, near Page, Arizona, is being decommissioned in part due to EDF’s advocacy.
I spent the next eight years working on clean air issues at EPA. I worked
on many examples of good-faith collaborative solutions. Maybe the best
example was the cleanup of a major coal plant near the Grand Canyon, the
Navajo Generating Station. An agreement among diverse interests called
for a 90% reduction in the massive sulfur pollution from the plant, which
discharged more sulfur pollution than the entire Los Angeles basin and
was polluting the air for many miles downwind. Native American families
and communities including thousands of Navajo families without access
to electricity were severely affected by the array of pollution created in
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delivering power and water to distant western cities. The historic agreement
was between two environmental groups, the Environmental Defense Fund
and the Grand Canyon Trust, and the plant owners, and it was an initiative of
President George H.W. Bush and officials at EPA.
This collaborative solution was announced by the President on the south rim
of the Grand Canyon. I was there as the lead EPA attorney and was deeply
affected by the important role that EDF and the Grand Canyon Trust played
in catalyzing a solution through litigation.
And it’s been very rewarding. EDF spearheaded the first legal victory in the
Trump era, striking down Scott Pruitt’s unlawful suspension of oil and gas
pollution limits. In summer of 2017, we were preparing for the administration
to roll back the oil and gas methane pollution limits. It was really hard to tell
what the timing would be, because the administration was operating in so
much secrecy. The government under Trump is so opaque.
There were some early actions they took undermining pollution limits for oil
and gas. After the Trump EPA withdrew an information request seeking data
from the oil and gas industry, our colleagues and allies in the community
were saying we should sue. We were struggling because we thought
something bigger was coming, where the administration would try to tear
down the whole edifice of methane pollution limits.
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did we strike down their unlawful suspension of the methane pollution limits,
but those limits are still in effect today protecting millions of people from
methane, smog-forming contaminants and toxic benzene. Unfortunately, the
Trump EPA is now working to finalize another attack on those safeguards.
There were many other cases where the Trump administration used the same
playbook, and the judicial precedent we secured in the oil and gas pollution
case has been pivotal. They tried to unlawfully suspend a program to protect
against discrimination in low income housing. They tried to unlawfully
suspend rules protecting communities and first responders from chemical
emergencies. The same tactic was repeated everywhere at the beginning
of the Trump administration. But because of a case that EDF brought,
the administration lost in many other areas. The methane case created a
precedent that just had tremendous ripple effects.
The first case was EDF v. Duke Energy, a longshot case that ended with a
win. On that day in April, the Court announced its ruling that coal-burning
power plants and industrial smokestacks had to adhere to the Clean Air Act’s
protections to install modern air pollution controls when they upgraded
their facilities. For decades power companies had expanded existing facilities
rather than building new plants, a dodge to avoid the expense of installing
new air pollution control technology – even though the law specifically
requires it – or choosing to instead invest in fundamentally clean power.
Coal-fired power plants discharging smog-forming nitrogen oxides, mercury,
lethal particulates and climate pollution were still operating long past their
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expected lifespan because power companies were exploiting this loophole.
The Duke Energy case began in December 2000, when the Clinton Justice
Department filed a Clean Air Act enforcement case against the company,
which has more than seven million customers, mostly in the Carolinas,
Florida and a couple Midwestern states. EDF intervened in support of the
enforcement action to make sure the power companies owning coal plants
in this case and nationwide were responsible for the serious health effects
on surrounding communities. This accountability is crucial in leveling the
playing field between high pollution coal plants and zero polluting clean
energy resources like wind and solar.
We charged that Duke had made major expansions at many power plants but
hadn’t updated pollution controls, which is required under the Clean Air Act.
EDF lost at the district court level, and an appeals court affirmed the lower
court’s ruling. By then, the Administration had changed and Vice President
Cheney was trying to dismantle these very Clean Air Act safeguards. As
a result, the EPA wanted to adopt the damaging appeals court decision
as national policy. It looked hopeless, and our only avenue forward was
appealing to the Supreme Court. Many legal experts thought it was such a
long shot that the high court would even hear the case.
Many people told me to drop the case and move on, but I wasn’t about to
give up.
I reached out to EDF board member and Harvard law professor Richard
Lazarus and said, “We’ve got to take this case to the Supreme Court. Do
you know anyone who can represent us in a case with long odds, with little
compensation, a case opposed on all sides?” Lazarus recommended Sean
Donahue, a brilliant attorney who often represents nonprofit organizations.
I called Sean late that night and said, “Here’s this beyond difficult case. We
want to petition the Supreme Court to take it up and reverse the Fourth
Circuit. Many have advised us to give up, but we think the lower courts were
mistaken.” Donahue agreed. It seemed like a lost cause, but we had to try.
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and needles, and I was both shocked and elated — we had won. It marked
only the third environmental law case in 35 years that the high court heard
where environmental groups alone had petitioned for review over the
objections of the government. EDF President Fred Krupp released a statement
at the time that said, “The high court’s decision upholding these clean air
safeguards means we’ll have healthier air and less childhood asthma. We’re
very proud of our work in this case — it’s going to make a real difference in
people’s lives.” I call Sean Donahue, who did such an extraordinary job on this
case, our Jedi Master. Sean has briefed and argued many other major cases for
us since, and has had an extraordinary impact in addressing climate change
and protecting human health through the rule of law.
EDF board member and Harvard law professor Richard Lazarus with Vickie.
But that wasn’t the only, or even the most important, decision handed down
on that sunny day in April. In the case of Massachusetts v. EPA, the court
ruled that EPA has the authority and the legal responsibility under the Clean
Air Act to tackle greenhouse gas pollution, including methane and carbon
dioxide, which endanger human health and the environment. EDF was
tremendously proud to be a party to the case and immeasurably grateful to
Georgetown law professor Lisa Heinzerling and now Judge James Milkey, the
courageous and dedicated attorneys for Massachusetts who led the briefing
and argued the case.
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v. EPA provided the legal
underpinnings for major
actions taken by the Obama
administration to fight climate
change by limiting dangerous
air pollution, including the
landmark clean car standards,
the Clean Power Plan, which
limits greenhouse gases from new
and existing power plants, and
limits on the dangerous methane
pollution from oil and gas.
But I believe the state attorneys general, environmental groups and private
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sector allies will prevail because our litigation is anchored in the law and
the facts. Although Trump has tried to unravel or eviscerate nearly 100
environmental regulations, virtually all of these actions have been overturned
in court or are facing ongoing litigation. We think that all these threats will
continue as the administration rushes to lock in its damaging attacks on
public health and the environment before the November elections and tries
to effectuate new and dangerous rollbacks favored by key supporters. But
we’ll be there to challenge them and enforce the rule of law with our many
partners and allies.
The Trump administration’s disdain for public participation, science and the
rule of law makes its actions vulnerable. And the engagement of the public is
so important that we are holding the Trump administration accountable for
the profound human suffering in the courts of law and public opinion. The
recklessness of the Trump administration’s actions has been reinforced by the
numerous leading businesses that have opposed many rollbacks in public
and in court.
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climate and air pollution from the single largest sources and to prevent this
administration from inflicting permanent damage to our environmental
laws including crucial new laws like the 2016 bipartisan update to the
Toxic Substances Control Act. Other top priorities: to help drive today’s
investments in clean solutions, and to be on the strongest possible footing to
secure transformative progress if a new President is elected in November. If
not, our litigation, with numerous partners and allies, will determine whether
environmental law can protect millions of people now and for generations to
come. We have more than 30 active lawsuits against the administration. As I
mentioned, nearly all of the administration’s reckless rollbacks and attacks on
the states have been overturned or are now under litigation.
“
“
Part of the credit goes to our
tremendous team of attorneys,
plus policy and technical
experts who work with me in She’s enormously
Colorado and Washington, well-respected in the
D.C. along with expert
consultants, including many environmental community.
who formerly served in senior
Richard Revesz
posts at EPA. Credit also goes
to our wonderful partners
and allies who are diligently
working in the court of law and
the court of public opinion to protect these safeguards and the numerous
organizations and attorneys working to protect many other safeguards under
attack. My tremendous colleagues are inspiring in their dedication to protect
human health and the environment at the darkest time I have worked on
these issues over the past 30 years. And they are strategic and collaborative in
working with many groups and partners in our community, and with states
and private sector allies. They help build a bulwark anchored in law and help
defend life-saving protections for all Americans.
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risk disclosure framework for publicly traded companies that urgently needs
updating and strengthening. Industry standards are shifting at last, and
financial companies are starting to connect financial risk to climate risk.
The world’s largest asset manager, Blackstone, acknowledged recently that
climate risk is investment risk and called for transparent and standardized
disclosures.
For more information, please contact EDF Member Services at 800-684-3322 or email [email protected].