David Bookbinder

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GABRIEL GITTER-DENTZ:

What would you put into a 1.5 Celsius high school curriculum for students so a curriculum, taking either that target or another target into account,  what are the most important things to include?

DAVID BOOKBINDER:

I would not design a curriculum around a specific target. First of all, I think 1.5 is utterly impossible. I thought that 2.0 was, was, yeah, not doable. As soon as the ink dried in 1992 on the Rio treaty that was simply not going to happen. You’re trying to change the foundation of literally the global economy in a relatively short amount of time. That’s unbelievably difficult. Our society is built on fossil fuels, and transitioning away from them has enormous economic and social, political consequences, technological issues as well, so it’s not easy. And so I would not–you know, I think having goals is fine in the abstract, but I would certainly not have people design courses around it.

Because the measures that you have to take are, with some exceptions, more or less the same whether your target is 1.5 or two or three degrees Celsius, or whatever it is. What changes is the speed of implementation. There aren’t going to be a hell of a lot of things that you’d be doing if the target is 1.5 that you wouldn’t be doing if the target was 2.5. But you would just be doing them on different timeframes, so I would not design a curriculum where we’re talking about targets.

There’s never been anything like this, and it’s important that high school students and even younger than high school students understand what exactly is happening to the planet they’re living on.

GABRIEL GITTER-DENTZ:

Hello everyone, thank you for tuning in to Bridging the Carbon Gap. This is actually our first episode with our new name.

My name is Gabriel Gitter-Dentz I’m a senior at Hunter College High School and I’m from Manhattan.

ADAM RUDT:

My name is Adam Rudt. I’m also a senior at Hunter College High School, and I’m also from Manhattan. 

KEVIN ZHOU:

My name is Kevin Zhou, I am also a senior at Hunter College High School, but I live in Queens.

ADAM RUDT:

We noticed that in our schools, we don’t really talk about climate change that much. Maybe you’ll get it in the biology class maybe you’ll talk about it at the lunch table, but there’s no real dialogue, so in partnership with City Atlas, Kevin, Gabe, and I decided to go on a journey of making a podcast where we interview different experts and hear what they have to say. Our aim is to produce conversation about climate change among family, and friends, specifically between young people, who are the future of climate action.

KEVIN ZHOU:

On today’s episode, we welcome Mr. David Bookbinder. Could you introduce yourself?

DAVID BOOKBINDER:

Certainly, my name is David Bookbinder, and I’m a lawyer, and I’ve been working in Washington on climate and other environmental issues for about, God 30 years now. So, 30 years as an environmental lawyer here, 20 largely devoted to climate issues.

ADAM RUDT:

We’re really excited to have you on the podcast today. I think, you are our first lawyer on the show, and we’re excited to have you. Gabe do you want to start us off with the high school curriculum?

GABRIEL GITTER-DENTZ:

So do you have any thoughts or ideas about how high school students like us or younger high school students should be taught about climate change, whether it’s a separate class, or maybe integration into a bunch of different subjects?

DAVID BOOKBINDER:

That’s an excellent question. I have not thought about that. I’ve taught climate-related stuff to law students, but never to high school students, and I think in this day and age, we absolutely do need to be teaching serious climate policy to high school students.

I would probably do it in one of two ways, and maybe a combination of both. Certainly, the science of climate, science of climate change atmospheric dynamics, and the resulting changes to terrestrial environments. It is a science topic that can be integrated, I think into an Earth Sciences course, some extended into a physics course, possibly into biology courses, as we watch to see what happens to the species that are forced to migrate. As a result of climate change, we’re probably seeing accelerated evolution of some species, but the biologists would be the ones to tell us about migration of species around the planet. In any social science class as well the impacts on the world are just significant now and are only going to get bigger and badder as time goes by. That said, I think it’s also worth having as an individual course on its own.

There’s never been anything like this, and it’s important that high school students and even younger than high school students understand what exactly is happening to the planet they’re living on. I have two children they’re twins, they’re 26 now, and they grew up with a better awareness of climate change because, as one of them once said, a large part of American climate policy was made in our living room. So they got to understand it, and I think that was really healthy for them. They understood that a lot of their peers did not and seemed surprised by the magnitude of it when they got to college, or they got out of college.

So, I think it’s important to teach it a comprehensive climate change course in high school. I would do some of the science. I would do some of the governmental regulatory responses, I would do some stuff on the geopolitical aspects of climate change, some of the social aspects of climate change. I mean there’s an infinite amount of stuff because it literally affects everything, and it would actually be a lot of fun to sit down and think about how I would package that up in a class for high school students.

ADAM RUDT:

You went to Stuyvesant in New York City. So, do you remember anything, did they teach you anything like that?

DAVID BOOKBINDER:

No, that was–I graduated from high school in 1978, I’m a very old guy. No, there was nothing in Stuyvesant on climate change, that simply wasn’t part of the dialogue. When I was in college, I don’t think it was part of anything I came across.

I graduated from law school in 1985, and by then I think there was some muttering about it, but it was only the late 80s that it began to really be on people’s minds like some lawyer in Manhattan, and it didn’t come up professionally, but it certainly was something we began to be aware of. Then in 1992 came the Rio treaty, which was the first significant international event, 140, some odd 160, some odd countries got together and said, we’ve got a problem on our hands with this whole global warming thing. So at that point, it became, at least in my world, ubiquitous and hasn’t lifted since then.

ADAM RUDT:

One thing that I’m thinking of just right now as you’re mentioning, Rio 1992. That’s something that I’d never heard about. Probably, our peers have never heard of it.

DAVID BOOKBINDER:

Yeah no, a lot of people don’t know, don’t know that George Bush, the elder George Bush signed the Rio treaty on behalf of the United States which said, by God. Global warming is a big international problem and we need to do something about it. That’s as far as it went, but it was a recognition by the entire world that they had a problem on their hands. Unfortunately, 30 years later, not nearly enough has been done, but societies move slowly political systems move slowly. They move at the pace of human events, and climate change is something that’s going faster than the pace of human events, and it keeps getting faster all the time. An interesting way to think about it was, I remember someone saying, you know, whenever we discover a new fact about global warming, it’s bad. 

You don’t get good news coming out of it because scientists are extremely conservative, by definition, and they do not publish results until they hit what’s called a 95% confidence interval. Meanwhile, the rest of the world works on a much less stringent, much less rigorous scale than being 95% certain of something. 

The legal world is divided up into–there are many ways to look at it and divide it up, and one of them, the easiest is factual issues and legal issues, you know. Did Mr. Smith run over Mrs. Jones, that’s a factual issue. Well, is Mr. Smith liable for running over Mrs. Jones, that’s a legal issue. Legal things don’t change quickly and are susceptible, you need one or two things to happen, either the legislature passed a law saying well if you get behind the wheel of a car and you’re drunk, and you hit somebody by God, you are liable. Judges over time evolve legal doctrines that begin to take into account new things, and the evolution of legal doctrine is a whole ‘nother fascinating world. 

Have you come across Thomas Kuhn’s Structure of Scientific Revolutions? It’s a wonderful book that came out I think in the 60s or early 70s and was quite revolutionary. Kuhn had a grand theory about how scientific revolutions take place. His view is quite persuasive, and now there are entire courses taught on this. It’s not an accretion, accretion, accretion, slow change, it’s accretion up to a point, and then the old model simply can’t live with all of the exceptions and it snaps. Then you get a new model replacing it. It has a defining event, which is why it’s called the scientific revolution because the old model works, and then it doesn’t work in this situation, or the other situation, etc, etc etc etc. And finally, it breaks down entirely and has to be replaced by something.

That’s how scientific progress is made. Legal progress can sometimes resemble that, or sometimes it can just resemble endless plodding along and changes. And a large part of the work of the last 20 years has been talking to judges and getting them ‘A’ to understand that this is a real problem, and ‘B’ trying to get them to use the tools at our disposal, and in some cases, expand them to cover climate change.

Lots of laws that have been around long before anyone thought about climate change and the question is, can you use these? Because legislators are not so eager to start doing their job and fixing things, if only they were. So you have to come up with interesting ways, ways to use the law to kind of push then.

GABRIEL GITTER-DENTZ:

So speaking of what you were just talking about, using the law to apply it to a newer climate change thing. We know one of the cases that you were involved in was Massachusetts versus EPA.

Massachusetts versus EPA is the bedrock law of climate policy. This case which was decided in 2007 found that carbon dioxide as well as other greenhouse gases emitted from motor vehicles do count as air pollutants under the definition stated by the clean air act, and therefore that they can be regulated by the environmental protection agency. 

So could you just tell us, maybe some of the most important facts, and what was your role in that?

DAVID BOOKBINDER:

Okay, by the way, your description of Massachusetts is more accurate than 90% of the descriptions I hear about it. Most people think that oh, that was something that made the EPA do something about greenhouse gases, but you’re right, it wasn’t that, it was even more fundamental. It was simply could greenhouse gases be considered pollutants, under the Clean Air Act. What did the word pollutants mean, and pollutant had a definition under the Clean Air Act – did that encompass greenhouse gases or not? That was the case.

That was the entire case, did greenhouse gases fit within this one or two sentence definition in the Clean Air Act. And we said it did and the government was busy saying no it doesn’t. The case started with a man named Joe Mendelson. Someday we’ll put up a statute to Joe Mendelson, was at a very small obscure think tank in Washington called the International Center for Technology Assessment, and he sent a petition into EPA on behalf of his group and many, many of the smaller environmental groups, saying you need to regulate greenhouse gas emissions from Congress, and he did that towards the end of the Clinton administration in around late 1999, or early 2000, and there was a meeting at EPA and EPA’s response was, yes we need to start working in greenhouse gases.

That’ll be the first thing we take up in the Gore administration. There was no Gore administration, George Bush became president, and it, you know, EPA took a very large step back, it was the younger Bush became George Bush 43. The younger George Bush stepped away from climate change and wasn’t interested in dealing with it. At least his father was willing to say yes it’s a real problem. So, this petition was sitting around at EPA, and I’m going to get kind of technical here. It’s a bit of an elaborate story so bear with me and ask questions. The petition is sitting around the EPA. Meanwhile, California was working on its vehicle emission standards for greenhouse gases, and under the Clean Air Act, California gets to set its own standards because, when the Clean Air Act was passed back, the original version, in the 1960s, California’s smog problem was so awful, so bad that Congress said, Yeah, you get your own authority to regulate vehicle emissions, and because you’re going to need more stringent standards in the rest of the country. 

Those standards were called the Pavley standards, after Fran Pavley, a California Assemblywoman and they will be putting up statutes to Fran Pavley someday because she rammed the law through the California legislature saying, we are going to regulate greenhouse gas emissions from cars. So, California is working on it. And I’m sitting in DC and kind of working on it too. And this is during the Bush administration when I was working on something else in Washington. I was working on judicial nominations. And I could see that the number of appointments that the Bush administration would make to the United States Court of Appeals for the District of Columbia Circuit, which would be the court hearing, the legality of California, basically California would be able to regulate –would have to go through a very usually easy process where EPA says yeah, that’s right, you’re okay under the law, Congress told you you can do this. And it’s done hundreds of times and never had a problem with the EPA. [But] they go through EPA now, one side or the other is going to sue, EPA, the moment it says either yes, you can approve California standards or no you can’t approve standards. And I looked at the calendar. 

And I realized that by the time the legal challenge–by the time California made its formal application to EPA legal challenge, the composition of the DC Circuit would have tilted considerably towards more conservative judges. I actually ran a spreadsheet on the numbers- of the numbers of judges who are around, currently and who would pick them and in the next few years the anticipated number of retirements and new judges coming up picked by President Bush, and I just said uh oh that the DC Circuit, was going to be a very bad place to be on an issue like this come 2006, 7, 8. Whenever California stuff got to EPA. EPA took its usual year or whatever to think about it, etc, and then stamped it either yes or no. So I thought about how do we get a decision sooner. From the DC Circuit, as to whether or not you could regulate greenhouse gases under the Clean Air Act, people were talking about hey, California can’t do it because the Clean Air Act doesn’t allow EPA or California to regulate greenhouse gases from cars. Yeah, that was the legal issue that we knew would be teed up on California’s application, came through EPA and then went on to court. And I remembered there was this petition sitting around, and I knew Joe Mendelsohn. And I talked to Joe. And we agreed the thing to do was we need to get that petition decided, simply so we can get the legal issue of, are greenhouse gases pollutants under the Clean Air Act? to the DC Circuit while it was in better shape or a more favorable court for us than it will become in four or five years down the road. And so we, we had to do a few things the petition was literally sitting in a drawer of EPA, and there’s no way to force an agency to do something on a petition, there’s no deadlines, they can look at it and think about it for as long as they want, except there’s a provision that says, When agencies don’t do something for a long enough time, you know courts will make them. It’s called heavily delayed unreasonably. 

 

Well, it only got in the position to be petitioned in 1999 and this was 2003, four years is not- the courts are very deferential to federal agencies in terms of look we got so many damn things on our hands, we don’t have enough people, and we’ve made a decision that this goes to the stack or the bottom of the stack. Over there we got all these other stacks, we have to deal with. Courts are extremely deferential to that. So, we have no choice. So we sued them for unreasonable play. And we fully expected to lose. But we had really no other way of doing it to get a decision on that petition, and it turns out that the people in the administration, the Justice Department EPA didn’t want regulation of greenhouse gases, said, Okay, fine. Let’s give them the answer right now. Let’s find- we’re gonna have to do this sooner or later. Let’s just tell them, No. And we’re EPA now, we don’t want to wait for a Democratic administration. Let’s just tell them no right now and take it from there. And so to our utter astonishment. They issued their decision, saying, Nope, we’re deciding your petition and the answer is that we can’t do this because greenhouse gases are not pollutants under the Clean Air Act. Then came the big fight, it was the fight over their decision, but there was a long- I just went through is, unfortunately, a long backstory, leading up to how that happened. And then we just got the straight-up legal fight, culminating in the supreme court decision. Does that make sense was that understandable? Do you have questions about that?

 

ADAM RUDT:

 

That was super engaging and made a lot of sense. What I don’t understand is how does the petition, eventually how does having them say no to the petition eventually lead to this?

 

DAVID BOOKBINDER:

 

 Oh, you can sue an agency when they give you a response to something. Very simple! They said this isn’t defined, it’s outside of what the rules are and in court, you can say. Your Honors, of the DC Circuit. The agency was wrong. And we lost in the DC Circuit. Yeah, it was going to get worse, but it wasn’t great for us then. And we lost, and we then had to go through the exercise of well we have a bad decision. Do we live with that bad decision, or we go to the Supreme Court and A get it overturned to get a good decision, or B, have a bad decision made much worse. It’s one thing, having the DC Circuit say this now, it leaves our options open.

 

 If we go to the Supreme Court, things could get a lot worse. And this framework could slam the door entirely on ever regulating greenhouse gases from any part of the Clean Air Act from anything, it was just like a big decision that we had to make and we decided to go forward with it, and the court said no the supreme court said no the DC circuit got it wrong and EPA got it wrong. Greenhouse gases are pollutants under the Clean Air Act. The next question is whether or not to- subsequent separate question as to whether the agency must regulate them. And that was, that was the second part of things. That was actually the easy part. The hard part was, was legally getting them, yes they’re pollutants. Okay, well, do they have to regulate them. And the answer is, under the Act, EPA regulates pollutants when they are reasonably anticipated to harm human health or the environment, human health, welfare, and the environment, something with a test is reasonably anticipated to endanger, and it’s called the endangerment finding.

 

ADAM RUDT:

 

So that’s incredibly broad, right? 

 

DAVID BOOKBINDER:

 

Yeah, so you want to give agencies the leeway if they discover something. Oh my god, this thing that we didn’t think ever before was a problem, is a problem, which unfortunately happened way too many substances in the last 50 years, but it gives the agency the wherewithal to regulate them. And that was called the engagement finding we got that in the early days of the Obama administration. And that was a semi challenge but there was no real challenge to that because that there’s a perfect example of difference in the question of fact and a question of law, the question of do greenhouse gases fit within a definition that’s a legal question. Are they anticipated in the atmosphere to endanger human health or the environment? That’s a factual question. And EPA amassed tons of data to defend- to support its decision. And so we have no doubt about that. That, that would stand up to any judicial review, and the other side understood as well.

 

 Although in the Trump administration, there were some people who said, Oh well, let’s, let’s overturn it. But let’s reconsider that whole thing, and we’ll use our science to show that that was that greenhouse gases don’t endanger anything. And they couldn’t get any traction because even the worst environmental lawyers in the Trump administration, and there were plenty of them, understood that, that they could not make a fact-based argument about that issue. So, once we got the definition. And then we got the agency to say, Yeah you bet it endangers is reasonably anticipated to endanger, that allows the regulatory wheels to start turning. You’re learning way too much about how the government works, I’m really sorry to harsh your mellow right now because this is way too much information about how our government actually does or doesn’t do things.

 

GABRIEL GITTER-DENTZ:

 

I also wanted to talk about- I know there’s a standing issue in the case, like whether Massachusetts had a standing because I guess there has to be an actual injury to the party. That is, appealing to the Supreme Court, and in one of I think there was an argument and one of the dissents that said that there’s no necessarily concrete or like personal injury to people in Massachusetts, and therefore greenhouse gases don’t have to be controlled. So were there any merits to this argument?

 

DAVID BOOKBINDER:

 

I don’t think so. I mean, we realized standing was, we were gonna have two tough questions. Although oddly, my feeling was we’d win five four on standing and we’d win nine nothing on the merits of the case because the Clean Air Act is so damn clear that these things were pollutants, but standing was something we were very worried about. And it’s a, it’s a completely judge-made doctrine. And it says federal courts can’t help you unless you’re particularly injured but what, you know, Smith is claiming Jones hurt him. Well, you know, did Jones hurt him? Okay. Are you sure it was Jones doing it? How certain are you that Jones’s actions, how remote are Jones’s actions, did Jones take an action 22 years ago, after 14 Different things happened, injured Smith or Jones came over and smacked Smith in the head with a hammer. So there’s causation chains. And there’s the concreteness of the injury, and then there’s also okay Smith smacked Jones in the head, but guess what, we don’t have jurisdiction over Smith, we can’t help you. 

 

This Court has no power to do anything to Smith at all so you ultimately- why are you here? So standing is a very complicated doctrine and one that we’ve, we’ve had to deal with and it’s been mostly evolved in the environmental arena, and mostly used by courts to trim back the standing of environmental groups, to sue bad guys. An easy way of looking at it is you want to challenge the Forest Service, the Forest Service says wire hazard can go cut down all those trees over there in a national forest, and you say, well I have members who use the national forests I’m the wilderness hiking club. We use the National Forest. Well, has he used that part of the National Forest? When was the last time one of your members actually used that part of the National Forest? Oh, Bob used it, well Bob is 99 now is he going back to that part of the national forest? 

 

They’ve gotten very persnickety about it, in an effort to cut back on how environmental groups can sue. Anyway, the majority said look, Massachusetts is physically losing its property, the shoreline of Massachusetts sea level rise is literally wiping out and taking away, square miles of the state, that’s an injury, watching your state go underwater is a cognizable injury. And unfortunately, the former dissenting justices including some who are still sitting on the court said no no no, nothing to see here folks. Nothing to worry about no standing, and we don’t have to even get to this silly issue of pollutants which can’t possibly include greenhouse gases. Justice Scalia said, Well, if carbon dioxide is a greenhouse gas. Why isn’t -why aren’t Frisbees? Why aren’t frisbees they go up in the air too so they should be pollutants? They got really kind of ludicrous. If you ever read the decision, you’ll be amused by some things the dissent says.

 

societies move slowly political systems move slowly. They move at the pace of human events, and climate change is something that’s going faster than the pace of human events.

 

ADAM RUDT:

  

I think part of the reason that we like putting a- think about a 1.5 or 2 is because you know, you have a number on progress, you’re able to start at a place, it’s somewhat tangible, are there better- what’s an alternative motivator or an alternative concept to center a high school curriculum around?

 

DAVID BOOKBINDER:

  

I would center it around understanding how our society ultimately relies- you know, I think I told you last time, energy is the means of, the means of production, it’s what everything is based on is energy, and understanding that literally everything we do ultimately comes down to consumption of energy, and almost all that energy that we consume is fossil fuels and having people understand how pervasive it is that you know, you’re turning on that light or you’re turning on the heat or you jump in your car or you ride on the bus, or you go out and you buy food. 

 

Everything you do ultimately is tied to the use of energy and, I mean that food doesn’t show up in your- in the supermarket by, by chance, it shows up because there’s a long chain of sometimes energy-intensive actions that got it there. So once- I think people have to understand. Energy is fossil fuel energy made- certainly in Western industrial civilization basically, with some exceptions in the least developed countries the entire world economy. And, you know, people just need to understand that and understand what are the technological challenges of moving to alternative forms of energy, that’s what I- that’s half the mitigation half of the adaptation half is what the hell do we do? What do we do about sea-level rise, and what do we do about increased wildfires? 

 

What do we do about population migration and conflict caused by climate change? There’s a whole lot of problems that get caused, and we have to think about all of them. That’s what I would design the course around, those two things, you know, everything we do is based on energy, here are, the challenges we face in moving from fossil fuel energy to renewables. Meanwhile, we have been planning for all of these very, ranging from bad to nightmarish scenarios that we are faced with. 

 

I would also throw in another thing which is the psychological component of all this, which is- there’s a lot of- there’s a psychic cost to having to deal with climate change. I think I talked to you guys about my children and you’re of an age where you’re watching the world. This is happening and this is going to happen in your lifetimes, big time. And the is kind of a psychic tool that can impose on people. I would not downplay that for high school students, I think they should all be extremely aware of how it permeates their world. I mean, yes, students in other countries- people in other countries may not be aware of that but high school students, the United States are well aware of what’s happening, and they need to understand what the consequences are- the psychological consequences to them, to you guys, it’s not easy. I understand it is not easy for you to look around and go, What do we have a huge global potentially nightmarish situation on our hands. Thank you, mom, dad, previous generations. So yeah, that’s the other thing I would take into account, in designing a course for high schoolers I suppose.

 

GABRIEL GITTER-DENTZ:

 

Yeah, we actually- in our last talk just a few days ago we talked to Rosemary Randall who’s a British climate psychologist, and she was talking about a lot of this stuff related to that, including a principle that there’s only so much, people can worry about.

 

DAVID BOOKBINDER:

 

 Yes. 

 

GABRIEL GITTER-DENTZ:

 

So with high school students, especially now, there’s a lot of other things to take into account and it’s pretty hard, or, hard to get yourself to worry about another thing.

 

DAVID BOOKBINDER:

  

Yeah, and let alone one as big, as scary, and is one of which us as individuals are largely powerless over. Yeah, it’s not a good combination and I do not envy any of you. Sorry to be kind of brutal like that but yeah it’s hard, and I can understand that, you know, your high school students, the idea that there’s this huge thing out there that you really can’t affect in any- there’s nothing you can do to change it for yourself, it has to be a kind of global effort. It’s not an easy lift

 

GABRIEL GITTER-DENTZ:

 

Thank you for listening to this episode of our podcast in which we got to talk with David Bookbinder, Sierra Club’s Chief Climate Counsel on Massachusetts vs EPA, and now Chief Counsel at the Niskanen Center in Washington DC. In this episode we got to talk about how to create a climate-change focused high school curriculum, as well as Massachusetts vs EPA, which is a case that Mr. Bookbinder was directly involved in and that forms a large part of the bedrock of climate law here in the U.S. Thank you for listening to Bridging the Carbon Gap.