Owl in America || November 13, 2024

Notes from an American environmentalist

Author photo. Lichen, fungi, and mosses on a living tree limb in western Oregon, U.S.

Hello all~

In the wake of America’s presidential election results, which I’d expected but still hoped against, I’ve decided to add something new here at Fearless Green. “Owl in America” will be a series of letters chronicling the next four years from the perspective of an environmental lawyer. Chronicling, but also, I suppose, bearing witness.

Already in dire decline, the outlook for the health of our co-inhabitants of Mother Earth was not helped by my fellow countrymen’s choice on Election Day. Because of course, that choice will ramify in ways we can’t begin to imagine; even those of us who were deeply immersed in the environmental policies of the first Trump administration are in for some shockers. I hope our hearts can take it.

My expertise is in conservation, public lands, and wildlife, so I will focus on these topics. Fairly frequently, these intersect with other areas of environmental law that are outside my scope, like regulation of industrial pollution and renewable energy, and I’ll add value there where I have something to offer. I have a background in wildlife biology and am a former U.S. Forest Service employee, so I bring my understanding of those worlds to my work as well.

I’ll return soon with more thoughts on what I think these short letters can be and do, and how to opt out of them if they’re not your cup of tea but you want to remain subscribed to my usual work. Hopefully, I can contribute something here. Anything, really. As I imagine many of you feel, I am a bit at a loss in this retread political environment.

I’ve spent the last week casting about for some helpful action to take. I’ve landed on sharing these letters, an extension of the skills I’ve built through advising judges on environmental laws from behind the bench to advising agencies and nonprofits on conservation to direct advocacy in state and federal chambers. What I can do—and have tried to do for my entire legal career—is to put human decisions in the same frame as their real-world impacts, particularly those harming the nonhuman world. I am no longer actively representing clients, leaving me freer than most lawyers to speak out publicly. So, let’s get to it.

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Two papers published in the science journal Nature this week have raised a new alarm about the health of the worldwide marine biosphere—that is, life in the oceans. Plankton, tiny or microscopic creatures floating in various layers of the ocean, some photosynthetic, serve as the base of the marine food web and as such are critically important for all ocean life. They are declining because of ocean warming.

Eight decades of data confirmed the abundance of one common group of plankton, foraminifera, has already declined by 25 percent since the 1940s. The papers predict that a further massive decline in plankton biomass will occur this century if ocean temperatures continue to rise, threatening populations of animals from fish to whales that rely on them for food.

Illustrating the truth that each tear in the fabric of life leads to an array of effects, the researchers also noted that a reduced plankton population is incapable of locking away as much atmospheric carbon dioxide as a healthy one, which could lead to a negative feedback loop where the oceans absorb far less carbon than they currently do.

Meanwhile, The Washington Post reports that the United States is expected to receive less snowfall this year, continuing a decades-long pattern of declining snowpacks. This has important implications for streamflow and water supplies, particularly in states where much of the water supply originates in mountain snowpack. It can also have implications for next year’s fire season, as forests will have stored less snowmelt in their soils and may well be drier and more fire-prone.

Wildfires have broken out in New York and New Jersey, fueled by an abnormally dry fall in which many parts of the region have seen no rainfall in a month. Crews are working toward containing the fires, which together total several thousand acres. Powerful winds have driven the smoke into large metropolitan areas like New York City, whose scandal-ridden mayor Eric Adams has managed to put his finger on a core truth in offering guidance to city residents: “Mother Nature is in charge, and so we must make sure we adjust based on the lack of water and rain we have received.”

Many in the environmental movement bemoaned the first Trump administration in 2016-2020 as a four-year period in which many opportunities to work for the Earth were missed, but worse, where hard-fought progress was reversed. Although few supported all the actions of the Biden administration, particularly regarding its emphasis on domestic fossil fuel production, the damage of the Trump years was at least partially mitigated during Biden’s term. One long-sought policy could have led to some robust protections for the less than 10% remaining old-growth forests on public lands, but its fate is unclear now. Observers believe the second Trump administration will work more coherently and effectively than before to gut bedrock environmental laws, the agencies that administer them, and our public lands.

An early Trump appointment to head the Environmental Protection Agency is seen as a harbinger: Lee Zeldin, former Republican congressperson from New York State, has been explicitly tasked with rolling back the Biden administration’s policies. The League of Conservation Voters awarded him a score of 14 (out of 100) on his lifetime record of voting against environmental protections. For example, he voted against a change to the Clean Water Act that would have prevented industry from dumping PFAS (“forever chemicals” associated with many health effects) into the nation’s rivers and streams.

Keep an eye on the appointment space: particularly important for the environment will be Trump’s choices for head of the Department of Interior, and within it, the Bureau of Land Management, the National Oceanic and Atmospheric Administration, and the U.S. Fish and Wildlife Service; equally critical will be his choices to lead the U.S. Department of Agriculture and its subsidiary, the U.S. Forest Service. One of the previous Trump administration’s agency heads, William Perry Pendley, is listed among the authors of Project 2025, which among many other things, outlines the Republican agenda for dismantling America’s public lands infrastructure and protection.

The D.C. Circuit Court of Appeals ruled this week that the White House Council on Environmental Quality (CEQ) has no power to regulate how federal agencies must administer NEPA (the National Environmental Policy Act), which requires environmental review before many federal actions that will impact the natural environment. It’s a stunning decision, in that agencies and courts have relied on the CEQ for decades to indicate how the law should be administered. Legal observers note that the Biden administration would almost certainly have appealed this ruling to the full D.C. Circuit court for an en banc review in hopes of overturning it, but suggest the Trump administration may let the ruling stand.

Relatedly, public lands policy expert Andy Kerr suggests that the conservation community must retrench and contemplate new ways to fight the destruction of America’s lands, waters, and wildlife. The first Trump administration served severe body blows to core environmental protection laws, and we can expect more of the same in the second. The result may be that the weakened laws, in concert with a judiciary increasingly packed with Trump-appointed judges, may no longer have the teeth to prevent biocide, inasmuch as they ever did. Kerr notes, “[federal public] lands were not a significant issue in the elections but will be severely affected by the results.”

The task of protecting life will increasingly fall to state and local leaders, so get involved. The Trump administration was not responsive to public outcry over environmental destruction the first time around and will probably be even less so now. California, for example, has a robust endangered species protection program (per the California Endangered Species Act), an environmental review process with more backbone than the federal NEPA law (per the California Environmental Quality Act) and a governor who is expressly shoring up resources to defend state actions from attack under Trump.

Last week, California’s Fish and Game Commission voted unanimously to add the western burrowing owl as a “candidate” for listing under its endangered species law. This gives the owl immediate state protections equivalent to those covering threatened and endangered species while further evaluation is completed. These kinds of listings and protections will become less likely under federal law even as the decline of once-common species accelerates.

Down-ballot races and initiatives across the country, even in deeply red states, show voters are interested in seeing state-level protections for basic human rights and environmental health. Whether those who voted for these rights and also for a Trump presidency will be able to reconcile their choices in the years to come certainly seems to be in doubt.

I’ll try to offer at the end of each Owl letter some tangible action that can be taken immediately to support Mother Earth. Today, I’ll share the following Note and a source for the seeds.

Wild Petunia Seeds, native to the central U.S.

If you live elsewhere, research what new-to-you plants are native to your area and order some seeds today. This is a great time to plant many wildflowers and other native plants which can be immensely beneficial to the wild lives in your area.

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Sources:

https://www.washingtonpost.com/climate-environment/2024/11/13/plankton-food-study/

https://www.nature.com/articles/s41586-024-08029-0

https://www.nature.com/articles/s41586-024-08191-5

https://www.washingtonpost.com/climate-environment/interactive/2024/snow-forecast-trends-climate-change/

https://www.washingtonpost.com/climate-environment/2024/11/09/nyc-fire-wildfire-brushfire-newjersey/

https://www.washingtonpost.com/climate-environment/2024/11/11/trump-epa-lee-zeldin/

https://www.opb.org/article/2024/11/12/biden-logging-forests-blm-oregon-climate/

https://www.eenews.net/articles/trump-may-entrench-dc-circuits-stunning-nepa-ruling/

https://subscriber.politicopro.com/article/eenews/2024/11/12/court-rejects-white-house-nepa-rulemaking-power-00189101

https://www.andykerr.net/kerr-public-lands-blog/2024/11/9/wtf-now

https://www.gov.ca.gov/2024/11/07/special-session-ca-values/

https://www.jdsupra.com/legalnews/new-cesa-candidate-species-impacts-2692808/

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*Inspired by Heather Cox Richardson’s Letters from an American.

You can reach me at fearlessgreen@substack.com