Environmental Law Leader Gives Insight, Advice in Stone Lecture
“Unfair as the courts and our laws can be, there is no institution in our society that is more expressly designed to privilege truth over power.” Abigail Dillen, president of the environmental law nonprofit Earthjustice, wrote those words in an essay collected in the 2020 anthology All We Can Save. Six years later, on September 1, Professor Cale Jaffe ’01 got the chance to ask Dillen whether she still stands by those words as she visited the Law School to give the Lillian K. Stone Distinguished Lecture in Environmental Policy. (Sponsors included PLACE, the Program in Law, Communities and the Environment; the Virginia Environmental Law Journal; and the Virginia Environmental Law Forum.) The lecture, in more practical terms, a structured conversation between Dillen and Jaffe, emphasized the importance of place. It also reiterated her faith in the legal system and lawyers, even new ones.
Dillen grew up “out West,” in Jaffe’s words, and got her law degree at Berkeley before starting at Earthjustice’s Northern Rockies office in Bozeman. The West, with its sequoias and grizzlies and whales, is perhaps the American region most archetypically associated with the conservation movement, and Jaffe asked Dillen whether she thought environmentalism was experienced differently around the country. Dillen conceded that environmentalism is based on what people love about the places around them, which naturally differs from region to region and habitat to habitat. Still, she emphasized that environmentalism is fundamentally about universal concerns like air quality and “the ability of ourselves and everyone around us to live a healthy life.” She considers it a shame that the word “environment” has come to be used as an abstraction “almost sapped of all meaning”: It’s about people and places.
One place on which Dillen and Earthjustice have been focused in recent years is Guam. After all, Earthjustice lawyers are the primary counsel for the respondent in Department of the Air Force v. Prutehi Guahån, which the Supreme Court will hear on October 7. The questions presented are technical ones about final agency actions and environmental review requirements. Dillen’s remarks, however, spoke less about the case and more about its setting. “Imagine the most beautiful beach in the world,” she requested of the audience. Consider that its shores are used as an economically important fishery and its aquifer as the source of drinking water for eighty percent of Guam’s population. Nonetheless, the Air Force detonates expired munitions on that beach. Earthjustice’s client won at the Ninth Circuit, which was what Dillen had expected. The Supreme Court’s decision to take it up, then, was an unwelcome surprise. While Dillen is hopeful, it’s hard to predict how the Court will rule; few amicus briefs have been filed in that case. Guam’s marginal place in the minds of most Americans (the Law Weekly invites its readers to find it on a map) may have something to do with the fact that the Colorado-derived Suncor case is attracting more attention. Suncor, dealing with federal preclusion of state tort claims based on environmental harms, will be argued two days before Prutehi Guahån.
Then again, Earthjustice is involved with the Suncor litigation, too; it keeps its hands in many pies. In fact, Dillen estimated that the group played a role in about forty percent of Supreme Court cases last term. After all, cases concerning the structure of America’s economy & government tend to have environmental implications as well. That doesn’t mean Dillen relishes Supreme Court litigation: “No one likes to have a case go up to the Supreme Court right now if you're doing what Earthjustice does.” Still, she is broadly optimistic. Over the last several months, Earthjustice has been on a “phenomenal winning streak.”
So, back to that six-year-old quote. Of all American institutions, is our legal system the best at revealing truth and leveling power? Self-serving as it might sound, Dillen still says yes. “What else?” As she sees it, evidentiary standards and institutional norms ensure that one can’t merely lie or buy one’s way to success in court. This is a double-edged sword. It means we lawyers have to do some work.
Thankfully, Dillen has some advice for us. Though she now leads an organization two hundred and forty attorneys strong, there was once a time when she was learning the ropes. The first time she received an opposition brief, she spent forty-eight hours “wondering . . . why [she] was so wrong about everything.” But it was just a well-written brief. She steeled herself, talked with colleagues, did her research, and carried on until she found herself speaking to the judge in orderly paragraphs relevant to the question. Perfectionism can be paralyzing, as important as it is to get things right. She encourages young lawyers not to get in their heads: “If I had really thought about whether I was the perfectly qualified person, the point of view that I was representing would have gone unrepresented.” Take leaps, find help, and embrace challenges. “That’s the only way you can learn what you’re doing.”
Author: Joseph Chambers