Listen to Cale Jaffe, professor of law and director of the Environmental Law and Community Engagement Clinic at University of Virginia School of Law, chat about the Supreme Court's ruling on Sackett v. EPA and his idea of climate whisperers.
00;00;02;18 - 00;00;09;22
Narrator
This podcast is a production of the Vermont School for the Environment, at Vermont Law and graduate school.
00;00;10;01 - 00;00;40;23
Laura Ireland
Everyone, welcome to the Hothouse Earth podcast. I'm Laura Ireland, associate director of the Animal Law Policy Institute at Vermont Law and Graduate School. And your new host. I’m trying to fill the shoes left by Jenny Oliver, who is a longtime host of the podcast. And we're so excited for her that she has some new adventures and looking forward to seeing all the great work that she's going to be doing and hope that she will join the podcast to share all of her new adventures.
And today I'm thrilled to introduce our guest, Professor Cale Jaffe, who is the director of the Environmental Law and Community Engagement Clinic at the University of Virginia School of Law. You were honored to have Professor Jaffe join VLGS as our distinguished climate law scholar this summer. Professor Jaffe, welcome to the Hothouse Earth Podcast.
00;01;02;15 - 00;01;15;14
Cale Jaffe
Thanks, Laura. I'm really excited to have a chance to chat with you all as as they say in call in cadio. I'm a long-time listener, first-time caller into the Hothouse Earth podcast.
00;01;16;12 - 00;01;37;24
Laura Ireland
Yeah, we're excited to have this opportunity to learn a little bit more about you, talk a bit more about Sackett versus EPA. Now that the environmental law community has a bit of a chance to digest the Supreme Court's recent decision and want to dive a little bit deeper into your thoughts on how advocates can become climate whisperers to help change and save the world?
00;01;38;04 - 00;01;39;01
Cale Jaffe
Absolutely.
00;01;39;15 - 00;01;47;12
Laura Ireland
Yeah. So first off, just want to know what inspires you to become an environmental lawyer and pursue a career advocating for the environment.
00;01;47;26
Cale Jaffe
Yeah, well, actually it really started for me when I was a high school student and I had the opportunity to participate in this semester-based program in Vermont, not too far from VLGS. It's a program called The Mountain School. I went there for one semester of my junior year of high school in the spring of 1990, which was the 20th anniversary of Earth Day.
It was an environmental-focused school in the first place. And I just came out of that experience really transformed. It's an amazing program. And in fact, I had the incredible joy this past year of seeing my daughter attend the program as well. And it just sort of get to relive that experience vicariously through her. The last thing I'll say about it and another sort of bonus to Vermont is we read a brand new book that had just come out the year before when I was up there as a high school student called The End of Nature by Bill McKibben, another now Vermont resident.
And of course, that book is really, you know, it's sort of a silent spring when it comes to climate change, really is the seminal book on the subject for a lay audience.
00;03;15;19 - 00;03;19;16
Laura Ireland
Yeah. Oh, that's great. I love that. Connections to Vermont.
00;03;20;09 - 00;03;21;01
Cale Jaffe
Absolutely.
00;03;21;04 - 00;03;25;25
Laura Ireland
Yeah. So what led you to work in academia and teaching?
00;03;26;09
Cale Jaffe
So, you know, I graduated from the University of Virginia School of Law back in about 2001. I'm a Virginia native and I had the opportunity, even as a law student, I was really thinking of academia, but I was also very interested, again, going back to my Vermont high school days, really interested in environmental advocacy and sort of getting my hands dirty in that kind of work.
So I went out after a couple of clerkships working with a group here in the Southeast called the Southern Environmental Law Center, which is a phenomenal organization. I was there for a little over 12 years, and I really loved it and in fact thought, well, maybe this is where I'm going to stay forever. And then just as I was sort of settling into that idea, the University of Virginia had a posting to hire a new clinical law professor to direct an environmental law clinic.
And I thought, Oh, well, this is an opportunity to really combine the two things I'm excited about sort of the academic exploration and the freedom to sort of follow ideas wherever you were they wherever they lead you. And at the same time still keep at least a foot in the world of the environmental advocacy world and working in on public interest environmental cases.
So being a clinical law professor really has been sort of the best of both worlds. You get to do the real work that you care about while also engaging in the broader academic community.
00;04;59;23
Laura Ireland
Yeah, that's great. I hear that from almost all the clinical professors that I know that they just they love having that dual role and such a great important work that you're doing. So although that you're full-time faculty at UVA, we were really lucky to have you here as our distinguished climate law scholar doing our summer session.
So can you let the listeners know a bit about the program, what you've been working on, and what your experience was like spending a little bit of your summer up in Vermont?
00;05;29;08
Cale Jaffe
Yeah, it was really a wonderful opportunity to get to spend a couple of weeks in Vermont getting to know a lot of the other faculty as part of that Summer Distinguished Scholars program. So obviously, one of the most important opportunities I had was the chance to prepare and give a public lecture as part of the Hot Topics series.
That was a lot of fun and it gave me a chance to sort of play with some new ideas. I also had the chance to I got to guest teach one of the summer classes just a quick session with the Environmental Advocacy Clinic that's now going to be led by Christophe Courchesne, of course. And talking with Christophe was so much fun.
Really excited to see where he takes that clinic. And then the other thing that was just so much fun about being up there was, you know, because VLGS really has this powerful focus on public interest, environmental advocacy, you know, just had the chance to meet with so many really cool people. You have Kevin Jones and Mark James working in the Energy Institute, of course, Dean Jenny Rushlow had a chance to go get a beer with Pat Parenteau, even though he's now supposedly retired, but he seems to be super engaged in all things VLGS as you'd expect. So it was just fun to be part of a community like you've got there in South Royalton that's just sort of alive with all these issues from food and agriculture work to environmental justice.
It was. It's a really cool place.
00;07;11;04 - 00;07;33;07
Laura Ireland
Yeah, Yeah. Being new to the campus, I, I love that, you know, being an environmental law school, having this long history and I feel like all the faculty, staff, students, you know, being drawn to do some sort of public interest work with a real mission to be change makers and make a difference. I love how it permeates kind of the entire campus.
00;07;33;25 - 00;07;35;04
Cale Jaffe
Yeah. Yeah.
00;07;35;18
Laura Ireland
Yeah. So you mentioned that part of your work here was doing kind of a hot topics lecture and part of this series. And I know it was originally titled Climate Whisperers and excited to kind of learn more about your thoughts on that. But you know, the Sackett versus EPA decision came out just the week before, and of course, it was hard to resist the opportunity to talk about kind of that really, you know, big decision that came out from the Supreme Court.
So and it was kind of new when you had talked about it and now that, you know, the environmental community has kind of had a chance to digest that decision a little bit, are there any kind of new thoughts that you have about the decision and what it might mean for the Clean Water Act and environmental advocates?
00;08;24;06
Cale Jaffe
Yeah, I have a lot of thoughts about it. And I was, you know, felt it was important to me to pivot the hot topics lecture to address it for a few reasons. One, because it was obviously a bombshell of a decision on a core environmental issue. And if, you know, it's hard to imagine a hotter topic than the Supreme Court's engagement on a core function of the Clean Water Act.
But also, I had been involved in that case for a little bit. I had with students here at UVA in the Environmental Law and Community Engagement Clinic. We had written an amicus brief in the Supreme Court on behalf of the Idaho Conservation League and the case in circuit centers on Priest Lake, which is in Idaho, and the Idaho Conservation League had been engaged for many years, decades, really in preservation of water quality around the Priest Lake area.
So it was a real opportunity to get deeply involved in that case. And then with the student who worked on the brief and was involved in the clinic, I also co-wrote, wrote a book chapter, sort of looking at the ripple effect that the Sackett decision might have, and that's going to be published in a forthcoming book that's looking on both sort of EU and American law, environmental law, and litigation.
So I'd been thinking about sort of what this case is going to mean for a while, and what I think jumps out at me most significantly is the lack of deference that the majority opinion, Justice Alito's opinion, shows towards the other supposedly co-equal branches of government. Yeah, you've you know, that core issue is this sort of question of what does, you know, how what is adjacent mean in terms of protecting adjacent wetlands.
And when I first thought about this, you know, in the case involves this couple, Michael and Chantell Sackett, looking to build a home, a vacation home on Priest Lake in Idaho, a very popular tourist destination that the site that they were hoping to build on is about 300 feet from the water's edge. And you know, trying to think of are the wetlands on that site adjacent to the lake.
And you think about it or in common parlance, let's imagine that the kids have a house there and they invite friends out for the weekend and they say, hey, come to our house and, you know, it's you come down this road or that. It's just adjacent to the lake. And that would be a totally normal way to talk about it.
Right. It's 300 feet. You can see the lake. It's right there. It's adjacent to the lake. And so the wetlands are obviously adjacent to the lake. And there is a lot of law, both from the Army Corps of Engineers, obviously, and it's part of the executive and executive agency. So that's essentially the voice of the president. So you had Congress and the president for 45 years operating under an understanding that at least some wetlands that aren't physically touching a navigable water but are close enough to be in any commonsense definition adjacent, that those should be protected.
And it's remarkable that the majority opinion does not defer it at all to either Congress or the president. You know, and it's not just one president. It's you know, it's it's eight presidents from Carter all the way through Biden, even including President Trump, even though he had proposed former President Trump to propose to really shrink Clean Water Act jurisdiction, He nonetheless had a great sort of common sense, understood a draft regulation on why those United States would still protect some wetlands that were maybe separated by a berm or a dike or some sort of sort of manmade structure, but were none-the-less, obviously adjacent in any common understanding of the word to a navigable water?
00;12;53;28 - 00;12;56;09
Laura Ireland
Yeah, seemed like very settled law.
00;12;56;09 - 00;13;22;09
Cale Jaffe
It seemed like settled. There was a piece of it that was extremely well settled that everyone agreed to. And I thought we would at least get that much, that they might shrink sort of from the outer edges of what some presidential administrations had sought to regulate. But I thought this core piece will be protected. And it's it's shocking to me that we did not even see that minimal level of difference.
00;13;22;25 - 00;13;32;00
Laura Ireland
Yeah. Which makes it just very interesting in this in this world, if you're thinking that all sorts of regulations that we have that might not you know.
00;13;32;06 - 00;13;32;21
Cale Jaffe
I'm kidding.
00;13;33;03 - 00;13;36;23
Laura Ireland
Continue to be what has been understood for decades.
00;13;37;15 - 00;14;02;07
Cale Jaffe
Yeah, that's such a great observation. I mean, if you think about it, if the majority is not going to defer to sort of 45 years of settled interpretation from co-equal branches of government, then what, where else are they going to fail to defer to sort of push what with feels at least like the court's policy choice?
00;14;02;07
Laura Ireland
Yeah, Yeah. But also, you know, want to have a little bit more chance to talk about your kind of idea of these climate whisperers. So while some things that are happening can feel a little bit discouraging, this idea of, you know, being able to do what we can to help have a hopeful message to lawyers and advocates about how we can still influence things like moving forward with climate-friendly initiatives is a great message.
And so if you want to chat a little bit about your ideas about climate whisperers and how to find common ground with people to help create change.
00;14;47;02
Cale Jaffe
Yeah, but seen things too that you know and it touches on I mean you hit on this a little bit the importance of finding some sort of rays of sunshine and some hopeful paths forward. And that touches into another thing that I think we face is as law professors, you know, we're teaching young emerging professionals, you know, folks in their mid-twenties, often maybe early thirties.
And I and that's also, by the way, one of the really fun things about this job is, you know, we get the public interest advocacy, we get the academic inquiry, but we also get and maybe the most rewarding part for me as I think about it is, is we get to be teachers and we get to be mentors and we get to help folks who are eager to get into this work but aren't really sure where they're heading or how to get there and help to guide them on that way.
That's that's been super fun.
00;15;42;19 - 00;15;43;14
Laura Ireland
That's the best.
00;15;43;27
Cale Jaffe
It is. It is an and so thinking about that role, I thought, wow, it's important that we sort of we get decisions like Sackett that really sort of weigh on us and they especially weigh on our students and we think, okay, how can we sort of chart a way forward? And that's where that climate whispers idea emerged from.
There's a book that I taught with in my clinic course last year by Katharine Hayhoe, who is an academic and a climate scientist, but also, I think, the chief scientist for the Nature Conservancy. She wrote this book called Saving US a Climate Scientist Case for Hope and Healing and Divided World. And I read that book and I've actually taught that book with my students here at UVA and the Environmental Law Clinic.
And I thought about what is it about what she's talking about and how she reaches out to sort of try to build bridges that connect to what is uniquely the lawyer's role. And that's sort of where the climate whispers idea comes from, is sort of looking at some of these bridge-building writings that are out there, like Katharine Hayhoe’s book, and then thinking, how does that translate to what lawyers are uniquely well-positioned to do?
I also teach a course here at the University of Virginia on professional responsibility and thinking about the rules on professional responsibility that have a lot about how we counselor clients or tell our clients, you know, advise our clients, collect information from our clients, protect confidences, all of that kind of good stuff. But there's very little about listening for listening’s sake.
Say, you know, if you think about it, for so many non-lawyers who get involved in the legal system, it can feel like a very strange foreign and even hostile world. And so how do we just sort of take the time where is the role in legal ethics to say, let's listen and just hear what our clients are saying, understand their fears, understand their concerns before we even think about how we're going to advise them.
And I thought that listening was really key. And then that made you reflect back on Katharine Heyhoe's book? And I thought, ha, she's doing a lot of listening here to let's see if we can connect what she's observed to what the lawyer's role is, or at least should be.
00;18;28;26
Laura Ireland
Yeah, I was going to say too, I mean, I think it's really important, you know, with our clients when we're in that role. But also you had when in your hot topics talk, you talked about a gentleman who had gone to kind of a town hall with Vice President Gore, you know, And so I think just the idea of listening when we're trying to develop policies and how they're really going to impact people on the ground or people that are involved in these industries, especially as advocates, if we want to, you know, regulate, you know, through the, you know, protecting water, air, trees or animals, you know, what that means to people that are in
the industry and really listening to them as well about kind of the real-world impacts of what we're trying to accomplish.
00;19;18;06
Cale Jaffe
Yeah, I'm so glad you brought up the example from the start of the Al Gore Q&A session. And I learned about this. I vaguely remembered it at the time it occurred in 2017. And Anderson Cooper on CNN hosted this town hall with Al Gore, former vice president, obviously a leader on climate change advocacy globally, and was taking questions from average folks and one of the folks was this guy named Booker Eskridge, who's the mayor of Tangier, Virginia, a small island in the Chesapeake Bay.
There. Deep, deep history, our home to generations of crabbers and oystermen. And it's also a very conservative community. And Booker Eskridge began his question to Al Gore by saying, hey, I'm a commercial crabber, I'm out on the water all the time, and I don't see the sea level rise. And essentially, you know, sharing his skepticism of climate change.
But at the same time saying, look, I know our island is disappearing, but it's not because of sea level rise. I think it's because we're seeing just a lot of erosion. And we need a sea wall. We need government to sort of help us stop erosion and not worry about sort of these broader, more abstract concerns. Climate change.
I think that was a moment Al Gore's and so much amazing work on climate change advocacy. Obviously. But this was a moment where maybe if he had stopped to listen, he could have seen some common ground. I think the initial reaction was one, oh, he's just not seeing the sea level rise in front of him because he just doesn't understand sort of the broader science of what's what's happening.
And in focusing on maybe what Eskridge, where they differed was missing the opportunity to listen and find out where they agreed. And I think there was an opportunity if Al Gore had slowed down and listened, not suggesting something which sort of asked questions and talked about erosion, and they may not have turned the whole story on, you know, not saying they would have, you know, that, Mayor Eskridge, but all of a sudden become a champion on climate.
But. Right. It would have at least opened the door to a continuing conversation.
00;21;53;27 - 00;22;17;25
Laura Ireland
Yeah. Yeah. As listeners, you know, we have all sorts of listeners who are attorneys, policymakers, students, potential students and people that are just interested in helping to make a difference. So do you have any advice to people who want to help make a difference in how to kind of move forward during these times?
00;22;17;25
Cale Jaffe
Yeah, I do think maintaining hope and to sort of stick with this idea of climate whispers, of listening, for listening sake is really valuable. I'll give you one more example of it that I talk about in the Hot Topics lecture. Folks want to get it in more detail, but there's this amazing story out of Arkansas about a school district in a very conservative community and a community that voted overwhelmingly for former President Trump over then-candidate, now President Joe Biden in the 2020 election.
But it was a poor school district. It was struggling to keep pace with teacher salaries as they needed to, was spending a lot of money on electricity and utilities and had the opportunity working with a solar energy provider in Little Rock to put solar on the schools. Use that sort of behind-the-meter solar generation to dramatically lower their electricity bill and then funnel those savings into teacher salaries.
And well, it's most heartening about the story is that the superintendent of schools for that district goes on to really become a solar energy advocate statewide, you know, lobbying for a net metering bill in the Arkansas state legislature and going up to Harvard as part of sort of a Climate Action Week series of events to talk about his experience in advocating for solar.
So this is something you know, he starts out he's he's a superintendent in a small rural conservative community in Arkansas, trying to sort of figure out how to pay the bills both for, you know, keep the lights on and pay the teachers. And through the solar advocates in Arkansas who just did a really great job of listening to the school district and what the school district needed were able to develop a real ally.
It's a wonderful example of success where you might not necessarily expect it.
00;24;29;22
Laura Ireland
So it's really interesting to hear this story about the superintendent in Arkansas, because I thought nobody's is going to want to help change the world unless it makes sense financially. So it seems that kind of like the superintendent found, you know, that it was, you know, it made sense financially to do this. And so maybe, as I know, kind of wondering your thoughts about that and maybe now that a lot of our and maybe people are seeing through a lot of the work that this administration is pushing, that there are financial incentives to help with climate solutions.
And maybe as we're getting, you know, as solar makes more sense, as maybe wind energy makes more sense, as, you know, electric vehicles and all that, if financially it makes a difference, then hopefully it'll also help make a difference for the environment.
00;25;25;11
Cale Jaffe
That, you know, that's such a good observation and such an interesting idea that, yeah, of course having things make economic sense helps bring every, you know, brings more people to the table. No one wants to spend money needlessly. And so, you know, you think of the Inflation Reduction Act, you think of the bipartisan infrastructure law and you think of incentives that are moving forward.
But and I guess, you know, just to tie it back to climate whisperers, obviously, and maybe this is something I need to spend some more time thinking about the financial piece of. It's important, but I really am touched by the value of listening to people. They obviously want to save money, but they really want to be heard. I think people really value being sincerely understood and listened to.
Again, I'm thinking back to sort of climate whisperers and my class or professional responsibility. One of the comments to the first rule in professional responsibility rule 1.1, which is the basic competency rule. It begins in the comments explaining role. It says Competent handling of a particular matter includes inquiry into the client's problem. Inquiry is in there. The rest of I'm paraphrasing a little bit and I thought that's a really important word, that it's not about competency. It’s not necessarily about what you do. It's about what you ask and I want to reflect on that a little more. I think if we spend more time on that, I mean, I'm not saying we're going to end all political in the United States just by asking good questions and pausing to listen. But at least, you know, case by case, project by project, as new lawyers go out and, you know, come out of the VLGS, or come out of UVA, or trying to be part of the solutions, if they spend some time listening and asking good questions and being patient, maybe they'll find some uncommon allies.
00;27;28;01
Laura Ireland
Yeah. So, yes, you know, definitely encourage all of our listeners to listen to your full hot topics talk. We're going to have a link to that in the show notes and we'll also get links to all of these books so everyone can join in on the reading group. Yes, absolutely. For all these great resources and for first people that are really interested in getting into this sort of work, you know, obviously being able to go to UVA, we're very excited at VLGS. We have a new master of climate, environmental policy degree that we're launching this fall. There's lots of great work to be done in this area. So very excited that you were able to join us here.
00;28;12;20 - 00;28;26;24
Cale Jaffe
And I hope to get back up to VLGS maybe this fall for VLGS’s famous Environmental Scholars Colloquium. That's in September. I've gone to that a few times, so maybe we'll get back up again this year, if I'm lucky.
00;28;26;29 - 00;28;34;01
Laura Ireland
Yeah, that would be great. You have all these partnerships and I'm so glad to have you part of our community. Thanks for joining us.
00;28;34;02 - 00;28;36;23
Cale Jaffe
Thanks, Laura.
00;28;39;12 - 00;28;49;28
Narrator
If you want to hear more about hot topics on environmental law and policy issues, check us out. Subscribe to the Hothouse Earth podcast wherever you get your podcasts.