ADVOCACY:

From legal mavericks to inside policy players

In the fall of 1970, the Vietnam War was in full swing, campuses across the nation were still reeling from the May shooting of four student protesters at Kent State University and the world had celebrated its first Earth Day.

And in New York, a group of young lawyers turned a three-room office in the New York City Bar Association Building on 44th Street in midtown Manhattan into the nation's first environmental law firm.

The Natural Resources Defense Council may be a fixture of the environmental policy world today, with 450 employees and assets totaling $185.5 million last year (for a look at financial information for five major environmental groups, click here), but it wasn't always so. The group's founders, who are fanned out across the country and include several of the elder statesmen of the environmental movement, remember that their effort was nearly stamped out in its first year of existence before living hand-to-mouth for decades.

"The pain to build something like this is just incredible," said founding Director John Adams in an interview. "And to find the funding and worry about it from year to year."

It wasn't until 1990 that the group built its endowment to the point where it was assured survival beyond a fiscal year, Adams said.

But the new group did survive and became a pioneer in the use of litigation to enforce environmental protection. It also contributed to a plethora of environmental statutes and rulemaking, and counts presidential Cabinet members, state officials and U.N. leaders among its former staff.

A coming together

NRDC owes its creation in part to the Ford Foundation, which brought together two separate groups in 1970 as a condition of funding either of them.

One of these was a group of Yale University law students who met while working on the school's law review and who agreed they didn't want to parlay their Ivy League degrees into lucrative jobs at big firms.

Instead, said Washington, D.C., environmental lawyer Richard Ayres, who still serves on NRDC's board, he and his friends wanted to spend their careers doing the kind of public interest law work that the NAACP had long been engaged in, and that was gaining traction with fledgling groups like the Center for Law in the Public Interest and Center for Law and Social Policy.

The idea of a nonprofit environmental law firm was supplied by Gus Speth, a third-year law student from South Carolina who would go on to found the World Resources Institute and to head the U.N. Development Programme. The group quickly embraced it.

"The environmental issue was so new at that point that there really was as far as we knew no one else doing it," Ayres said. "So we felt as if there was a niche here we could fill."

Ayres and two of his colleagues hailed from Oregon, and memories of growing up in the great outdoors added to their zeal for protecting nature.

But when the group approached the Ford Foundation for funding during the winter of 1968 and '69, it was denied. They graduated in the spring and took jobs -- Speth clerked for Supreme Court Justice Hugo Black, and Ayres went to work for a criminal law reform organization called the Vera Institute of Justice. But they didn't forget the idea of an environmental law firm.

"We all made a pact that we would stick together, stay in communication and make a run at it," Ayres said.

A year passed, and another group approached the Ford Foundation about starting a firm to use litigation to force corporations and government agencies to protect the environment.

Litigation was a very new tactic for the environmental movement, which was still dominated, in Ayres' words, by "gentlemen conservationists of the first Roosevelt era." But a small cadre of New Yorkers linked to local green group Scenic Hudson had just invested today's equivalent of $1 million in private capital to battle -- and eventually defeat -- Consolidated Edison's plans to build a pump storage plant on Storm King Mountain on the west bank of the Hudson River in New York state.

The Scenic Hudson challenge had helped establish that citizens have standing to sue to protect aesthetic value, including the environment, and its backers wanted to capitalize on that precedent in cases elsewhere in the country. They decided to create a new entity to carry on that work and tapped a young attorney from upstate New York with experience on Wall Street and the U.S. Attorney's Office as their first director.

Adams, who still has an office at NRDC as its founding director, approached the Ford Foundation for startup capital and was advised to join forces with the Yale group. There followed a somewhat uneasy merger, which began with discussions at Adams' Greenwich Village apartment during the spring of 1970, during months when he was setting up the nascent NRDC in space borrowed from the law firm Simpson Thacher & Bartlett LLP.

Adams remembers that there were differences in vision and culture between the two groups.

The Yale faction was younger than Adams and his collaborators and had been more deeply influenced by the war in Vietnam and the civil rights movement. Ayres remembers feeling that he and his collaborators -- who included Speth, future Commerce Secretary John Bryson, now-Environmental Law Institute board Chairman Edward Strohbehn and Harvard Law School interloper Tom Stoel -- had a clearer plan for how the group should operate. Adams remembers Ayres and his colleagues as anti-corporate activists.

"It's fair to say that they did not trust anybody over 30 at all," Adams said. "And they certainly didn't trust anybody who was in corporate America or a corporate law firm."

Adams' colleagues, by contrast, were older and more established in the New York legal hierarchy.

In the end, they decided their shared goals justified making a go of it. But then followed a fight with the Internal Revenue Service over whether groups with tax-exempt status could litigate, which resulted in a protracted 10-month battle that threatened to doom the group's ability to get funding -- a deliberate effort on the part of the Nixon administration to limit the sudden glut of public interest legal challenges, according to Adams.

"They didn't want a lot of people gumming up the works," he said.

It was a fight that might have ended NRDC before it began, but the IRS finally granted the group tax-exempt status and the Ford Foundation provided startup funding. By the time they moved into the Bar Association building that autumn, there were seven founding members, down from more than 10, and they felt like survivors.

"Of course, we had no cases, and no sense of how to get them," remembered Ayres.

But environmental law firms were few and far between, and the cases eventually found them. Ayres' own first case for NRDC was a licensing dispute with Vermont Yankee Nuclear Power Corp., which eventually saw the Atomic Safety and Licensing Board rule against the utility. He remembered that the case felt like an intergenerational conflict.

"You knew exactly which party was which," he said. "The judges for the Atomic Safety and Licensing Board were all in their 50s, and the lawyers for the company were all in their 40s, and then us -- the public interest people -- were all in our late 20s. So it wasn't hard to tell who was who."

Besides being older and more experienced, the industry lawyers had an established relationship with agencies that had overseen them for years and that were charged with helping to maximize their economic productivity as well as regulate them, Ayres said.

Public interest advocates were outsiders, and their arguments weren't taken as seriously in the early years.

"It took five to 10 years before we were a fact, and there was no longer any point in questioning the role of public interest voices in the process," he said.

A roster of insiders

NRDC came into being during the heyday of environmental legislation. The National Environmental Policy Act, the Clean Air Act and the Clean Water Act were enacted in 1969, 1970 and 1972, respectively, and the new nonprofit helped to shape rulemakings under those and other laws through litigation, and eventually through lobbying and outreach. It was also a moment when environmental groups were springing up around the country, or branching off into new areas of focus. The Southern Environmental Law Center was established, and the Sierra Club added a legal defense fund headed by Adams' Duke Law School roommate Jim Moorman. The legal defense fund eventually spun off to become Earthjustice.

"I came into the organization when it was young, I was young and the movement was young, and we've all sort of matured and developed together," said current NRDC President Frances Beinecke, who joined the organization in 1973 as an intern.

While NRDC has the same mission that it had years ago -- to help enforce legal environmental protections -- "the scope of what we do is so much bigger in terms of the breadth of issues that we're covering, and the geography that we're covering, too," she said.

NRDC quickly expanded beyond the little office in the Bar Association building in New York and the Dupont Circle brownstone attic that housed its first Washington, D.C., office. The group added offices in California beginning in 1972. It now has outposts in Chicago and Beijing.

It has also widened its focus beyond litigation to include policy, science, economics, communications and finally electoral politics with the founding of the NRDC Action Fund in 1996. And while NRDC had been active in lobbying Capitol Hill and the executive branch since the 1970s, it established a separate government affairs office in 1995 to better resist efforts by the new GOP House majority to limit environmental regulation.

"We push, we exhort, we litigate when necessary, and we work together with" public agencies, said Beinecke. "We have close relations, whether we're pushing or we're working together."

NRDC has 1.4 million members and "activists," or online followers who may not pay dues. But in contrast to groups like 350.org or Sierra Club, it is not a grass-roots group agitating from the outside. On the contrary, it would be hard to find a group with more connections in state or federal agencies than NRDC, and staffers move frequently between the organization and the public sector.

NRDC alums include U.S. EPA acting Assistant Administrator for Water Nancy Stoner; Michael Goo, now in a senior policy post at the Energy Department after stints in EPA's policy office and on Capitol Hill; and Mary Nichols, who heads the California Air Resources Board. There are numerous others.

Beinecke said government agencies recruit NRDC staff because they know the issues. While the group is an advocacy organization, it also operates as a think tank on environmental issues ranging from toxics to land use to air and water quality. Climate change has become the top agenda item with more than 100 dedicated staff assigned to it.

"We have tremendously deep expertise on the nitty-gritty particulars of how the policies are put together and how they work -- and how they should work -- as well as the legal expertise to ensure accountability of them," Beinecke said.

The attorneys in the attics and their successors left their mark on environmental law as well.

"If you go to law school and study environmental law, a lot of the cases you learn about are NRDC versus some Cabinet secretary or another over the last 40 years holding them accountable for implementing the various statutes," she said.

But David Goldston, NRDC's director of government affairs, said a stint at NRDC is considered a boon to public-sector employers in part because the group is judicious about what battles it chooses, and how it chooses to fight them.

The group weighs the political implications of a lawsuit before it brings it, he said. There are times when private persuasion is deemed to be more effective than public litigation.

And while it is working with Sierra Club, 350.org, and other groups to press the Obama administration not to grant the Keystone XL pipeline a permit, NRDC is not using all the same tools as its partners. While the Sierra Club broke with tradition last year to participate in an act of civil disobedience on Keystone XL, NRDC did not follow suit because upholding the law is central to its mission.

"That's the kind of characteristic that offices inside the government are looking for: people who know how to make deals, get into the details, not be overly ideological, but who can push the agenda forward," Goldston said.

He put NRDC in the middle of the environmental community's political spectrum, equally able to engage with the more pro-business Environmental Defense Fund and with activist groups like Sierra Club and 350.org.

"It is kind of a center of gravity for the environmental movement," he said of his organization.

A 'symbiotic relationship' with the administration

But some within the environmental space say NRDC is sometimes too reluctant to push the envelope.

Harvard University political scientist Theda Skocpol said NRDC does not seem to pursue the kinds of policy changes that are necessary to tackle a problem like climate change.

"NRDC seems to me to be very pleased that it can fall back on writing reports and getting EPA to do things through legal action," she said, adding that "purely regulatory strategies can do the whole job or be sustained."

And Bill Snape of the Center for Biological Diversity said NRDC and other centrist environmental organizations are too closely tied to the Obama administration to challenge its officials on certain issues, particularly global warming policy.

"It's a symbiotic relationship," he said.

Pat Gallagher of the Sierra Club said his group had done as much to lay the foundation for environmental legal challenges as NRDC had. He pointed to Sierra Club vs. Morton, a 1972 case in which the club sued to stop the Forest Service from granting a mineral company a permit to operate near Sequoia National Park.

"I think it's a little bit overreaching for NRDC to say they opened the gates," he said. "I'd say it was more of a co-equal effort of the club and NRDC."

Manik Roy, who served as an aide to the late Sen. Frank Lautenberg (D-N.J.), said NRDC's deep policy expertise across a wide variety of topics makes it influential with members of Congress.

"The one group I had to call on any issue was NRDC," said Roy, who is now vice president for strategic outreach at the Center for Climate and Energy Solutions. "They were extremely well-grounded in the substance, even though they always took the strong pro-environmental position."

Roy said the environmental community -- including NRDC -- continues to struggle in communicating the importance of certain priorities to its supporters outside the Beltway. This shortcoming, he said, amplifies issues like Keystone XL -- which are tangible and easy to understand -- over others that may actually have more potential to limit emissions. For example, environmentalists will need to engage with the administration on EPA's plans to curtail greenhouse gas emissions from power plants regardless of what happens on Keystone XL, he said.

"Policy is made on the common ground," Roy added. "And the challenge that those groups have is conveying what that ground looks like to the tens of millions of Americans who care deeply about the environment but don't have time to get into all of the details."

David Hawkins, NRDC's director of climate programs, said his group and others did an inadequate job of messaging during their 2009 push in support of comprehensive climate change legislation in Congress.

"We never should have let the dominant topic be cap and trade," he said. "The topic should have been protecting the climate. So we learned some important lessons there."

Passing the torch

NRDC is undergoing a period of transition. Beinecke, who has led the organization since 2006, announced her departure last month, setting off a yearlong search for a new president that will spark reflection on the future of NRDC and the environmental movement as a whole.

"I think for our entire movement, looking to how we can engage with a more diverse and younger community of people is absolutely critical," said Beinecke. "We've had a generation -- and I'm part of it -- who've led this movement for a long time. But we need people looking to the future."

NRDC is also expanding its international efforts, especially those related to combating climate change. The Beijing office opened its doors in 2006 and now has a mostly Chinese staff of 40. It has collaborated with the Chinese government on issues like energy efficiency, renewable energy and most recently on capping the coal consumption that has caused China's greenhouse gas emissions to balloon.

NRDC also supports locally led programs in India, Latin America and Canada.

"In the end," Beinecke said, "understanding how small the planet is, how these systems all connect, and how these boundaries are not that significant in many ways is going to be an important framework for the work that we're going to be doing."

Tomorrow: A look at 350.org.