The Power of Policy

Summary: While many law students graduate and become litigators, judges, or an attorney who plays another role in the judicial branch, some law students set their sights on the other two branches of government – the legislative and executive branches. We need lobbyists and policy advisors to assist our legislators so that the science necessary to make effective environmental rules and regulations can be codified.

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By Elizabeth Smith

When a lot of us came to law school, one of the assumptions many of our friends and family made is that we were going to be involved in litigation. I came to law school to figure out how to protect and conserve endangered species, especially tigers, by using the law. When I visited VLS, Doug Ruley told me, “The only real way to affect change is through the law.” At the Untitledtime, I thought that way would be through litigation. I have since realized there are several avenues to affect change through the law. Policy advocacy is one of them.

While many law students graduate and become litigators, judges, or an attorney who plays another role in the judicial branch, some law students set their sights on the other two branches of government – the legislative and executive branches. Many of those students spend their lives working on behalf of clients to convince law and policy makers to create laws that help those clients (ranging from trade organizations to special interest groups). These lobbyists play an integral role in the law making process. Growing up to be a lobbyist is not exactly a little kid’s dream job (except maybe the son from Thank You for Smoking. However, we need lobbyists and policy advisors to assist our legislators so that the science necessary to make effective environmental rules and regulations can be codified.

 Of course, the judicial branch side of lawmaking is also very important. Zyg Plater played an integral role in shaping Endangered Species Act (ESA) jurisprudence when he argued on behalf of the Snail Darter in TVA v. Hill (1978), the first ESA case before the U.S. Supreme Court. The work being done by staff and clinicians at VLS’ Environmental and Natural Resources Lakittyw Clinic on the Canada Lynx case is also vital to protecting the species. Many of the people doing this work will be at the Symposium on Friday and will speak to the importance of litigating cases on behalf of endangered species. They are on the side of rulemaking that some lobbyists call “cleaning up the mess” of a decision. While these exceptional attorneys litigate cases on behalf of endangered species, some people spend their time trying to make sure good policy decisions are made from the beginning so that litigation can hopefully be avoided.

Many of the people trying to make changes in the legislative and executive branches of the federal government reside on K Street in Washington, D.C. making policy on both sides of the aisle. Much like a trial attorney, they use facts to support the arguments they make on behalf of their clients. The reason why the work these policy advocates do matters so much is that legislators rely on lobbyists to educate them on specialized issues. Lobbyists even play a role in the drafting process by proposing language to be used in a rule or regulation. A great deal of the action happens on Capitol Hill (or C-Hill, as I’ve been known to affectionately call it) in the other two branches of government before a case ever reaches the courts.

One esagegxample of an important ESA policy decision was the U.S. Fish and Wildlife Service’s decision not to list the Greater Sage Grouse. The decision had huge ramifications and lawsuits ensued. Although the species was not listed, other mea sures were taken by the agency and the Department of the Interior to protect the Sage Grouse and conserve habitat. These policy decisions, like many others, will continue to be litigated for years and cost an enormous amount of money in attorney’s fees, discovery, and court time.

Lawsuits on big policy decisions from one side or another are pretty much inevitable. Environmental interest groups have been on both sides of these lawsuits – intervening on behalf of the government to support a good rule or suing the government for what the group believes is a bad decision. But if you are successful in convincing the policy makers and legislators to adopt your client’s view from the beginning, that view can become law or a regulation. If the law is already on your side, your client may just have a better chance of winning that lawsuit down the road.

 For more discussion about Endangered Species Act policy decisions and litigation, stay tuned for VJEL’s Vol. 18 Symposium on the Endangered Species Act this Friday, October 21, featuring Zyg Plater as our keynote speaker. Many current and former policy makers from federal agencies, including FWS and NOAA, will be discussing the ESA and where it is headed. Can’t make it on October 21? We will be uploading videos of the Symposium later on so you don’t have to miss it! The VJEL staff and I look forward to seeing you this Friday!

Elizabetbioh Smith is a third year J.D./Master’s in Environmental Law and Policy student at Vermont Law School. She is one of two Symposium Editors for the VJEL Vol. 18 Endangered Species Act Symposium. She would like to thank Maxwell Krieger, the other Vol. 18 Symposium Editor, for working tirelessly to make the Symposium a success. As graduation approaches, Elizabeth is currently deciding which path will be best for pursuing her goal of protecting tigers.