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Right-leaning law prof on hiking, biking, converting deniers

Jonathan Adler is an outlier among his peers.

A prominent expert in environmental law, Adler is more conservative than most in his field. And he's more interested in the environment than most in his political camp.

"There's a broader problem in environmental policy that most people that are really focused on environmental policy have decidedly left-of-center views," he said, "and most people on the right don't take environmental policy seriously."

Adler has become an ambassador to both worlds, advocating small-government solutions to big problems while pushing fellow libertarians and conservatives to get serious about pollution and climate change.

With an active Twitter presence, he's both a regular sparring partner for environmental advocates and a thorn in the side of GOP-aligned climate deniers.

Now a law professor at Case Western Reserve University in Cleveland, the 49-year-old spent many of his early years at top conservative institutions — earning his J.D. from George Mason University, whose law school is now named after the late Justice Antonin Scalia, and going on to work on environmental policy at the Competitive Enterprise Institute think tank.

He made some other stops in the D.C. legal world and escaped to Cleveland in 2001, grateful for the change in scenery.

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"One of the reasons I left Washington was because I increasingly found it hard to think seriously and independently and do that kind of work about environmental problems without being caught up in the red team-blue team stuff that so dominates our politics," Adler said in a recent interview.

He is now leading Case Western's new environmental program, the Coleman P. Burke Center for Environmental Law, which was just announced last month. He's also involved in the Federalist Society and right-leaning environmental think tanks, including the Property and Environment Research Center and the Foundation for Research on Economics and the Environment.

Adler chatted with E&E News recently about Case Western's new law center, his role in environmental policy debates and why he's not holding out for a spot in the Trump administration.

Tell me about your goals for the Coleman P. Burke Center for Environmental Law. What do you hope it accomplishes?

First and foremost, we're hoping to be able to help train the next generation of leaders in environmental law, to sponsor insightful and pathbreaking scholarship and research related to environmental law, and to help with the development of new solutions to ongoing environmental problems, both those that we're dealing with now and those that we will have to deal with in the future.

The center, funded in part through a $10 million alumnus gift, is just getting off the ground. What is some of the initial work you're doing?

We're in the process of developing a lot of our programming. In the immediate future, this fall we'll be hosting a conference looking at the first 50 years of the U.S. Environmental Protection Agency, and that conference will feature quite a few legal academics, as well as a few former agency officials and some nonlegal perspectives. In the spring, we're co-sponsoring a conference with the law school's Law-Medicine Center on environmental health, and that will be an interdisciplinary conference looking at legal and policy issues related to environmental health.

We're in the process of building out the environmental aspects of our curriculum, expanding the range of externships and experiential opportunities that we'll be able to offer to our students in the environmental area, putting together the alumni advisory board, as well as developing a broader series of conferences and workshops that will range from research workshops that are designed to help develop new research, roundtables to help foster broader discussions about environmental law and environmental policy questions and more public conferences. We're hoping to do a lot.

How do you see Case Western's environmental law program fitting among those at other law schools?

I can talk about some of the things that helps make us distinct. One, Case Western is a major research university with incredible strengths in a range of fields that bear on environmental protection, whether it's the health research, engineering and science research, [and] we have a number folks in the humanities that do very important environmental work.

A second thing is, I think our law school has for a long time been a leader in experiential education, and I think the ability to bring our approach there to environmental law is distinct. I think that the region of the country that we're in is one where a lot of environmental issues intersect and also makes it not just a good place for students to learn how these issues interrelate, but also to see how they interrelate in the real world, and they get to experience that.

You just look in the energy context at the number of energy sources and energy issues that arise just within our state, let alone our region — whether you're talking about the energy technologies of the past, like coal, and those of the present, like natural gas, and those of the future, like wind and the prospects for things like offshore wind in Lake Erie, it's a great part of the country to see how these questions interrelate.

Speaking of Ohio resources, in 2002 you wrote an oft-cited article about the infamous 1969 Cuyahoga River fire and how, according to your research, the incident ballooned and fed a distorted narrative about federal pollution controls. Years later, the article seems to still come up in your professional life all the time, right?

All the time. A lot of times, when I give speeches, I tell that story. I'm not very funny — you either have to give a story or a joke, and since I don't do the jokes very well, I do the story.

It was one of the things that I was most interested in exploring when I moved here, because I had heard hints that there was more to the story than we usually knew and was amazed at the richness of what I uncovered — not that I was the only person to have ever found any of this stuff.

But, yeah, it comes up a lot. Ohio has this distinct place in the nation's environmental history, and a lot of that has to do with Ohio's place as being such an important industrial state at one point in time and being a gateway state because of the Great Lakes and the connection to Canada. There's just so much, so many intersections here that make it a great place for these sorts of inquiries.

Do you ever get pushback on the article, locally or otherwise?

I think locally, for a lot of folks, the fact that the story has been so misunderstood by so much of the nation [has made it] a point of pride that people here know the real story. I've gotten pushback elsewhere; I rarely get pushback locally on that.

You can have debates about the counterfactuals, politically or otherwise: What if certain changes had been made at different times, what might have happened? You can have interesting discussions and debates about that, but on the basic narrative, I don't get much pushback locally.

Are your ideological views best described as libertarian-leaning?

I'm long past the point in my life where I've really been obsessed about labels. Some people call me conservative; some people call me libertarian, center-right, whatever. I'd be upset if I were called alt-right or something like that, but I haven't heard that one yet, so hopefully, it doesn't happen.

My political views or my political ideologies would generally be characterized as right-of-center in terms of my view of the role of government and my view of the role of markets and the like. I don't think there's anything incompatible with that worldview and having a deep and abiding concern with the natural world and environmental concerns. One of the reasons I left Washington was because I increasingly found it hard to think seriously and independently and do that kind of work about environmental problems without being caught up in the red team-blue team stuff that so dominates our politics.

I should also say, in terms of the center — and this is similar to my approach toward teaching and the like — is I have my points of view and my perspective and my policy preferences and so on, and I do some of my own work that makes the case for that point of view. But when I'm in the classroom, I'm not teaching my opinion of environmental law or administrative law or whatever else. I'm teaching the law, what it is, how to understand it, what the concepts are, what the points of debate are. I want my students to understand that area of the law, and that's far more important than whether or not they agree with me. And similarly, in terms of the center's role at the law school and its broader institutional role, it's distinct from my personal preferences. I feel very strongly about that. Sure, it would be nice if the work that I do encourages people to agree with me, but when it comes to teaching or the center's programming, that's not what that's about.

I'm not going to disavow my views on things, but there's a difference between what I say when I write an op-ed or when I blog and when I'm asked to testify in my personal capacity before Congress or sign an amicus brief and what I do as an educator and an institution builder.

You spend a good bit of time talking to other right-of-center people about climate change. How has that conversation evolved through the years that you've been having it?

It's not just climate change. There's a broader problem, in my view, in environmental policy that most people that are really focused on environmental policy have decidedly left-of-center views, and most people on the right don't take environmental policy seriously. And that makes it difficult. I also think it's not good for the development of sound environmental policies. You want there to be debate and broad discussion and people challenging each other's assumptions and premises and conclusions. That is necessary for development of good policy. And there are few areas of public policy, certainly few areas of equal importance, where the discussion is so lopsided. And that's unfortunate.

I've spent a fair amount of time in my career trying to both make the case for what you might characterize as conservative approaches to environmental protection but also simultaneously trying to make people who are right of center be more engaged in the substance of these issues.

Climate change is certainly a big part of that. My experience is that in Washington, it's often very hard to get people who are right of center to take climate change seriously as a challenge that needs to be addressed. That's particularly true publicly. There is a surprising number of people who might acknowledge it privately but who are afraid to say so publicly.

When I speak to academic audiences and student audiences and younger groups, I find a much greater willingness to engage, and that's true whether you're talking about undergraduate groups or Federalist Society chapters or whatever else, and that's encouraging to me in terms of thinking about the future.

But, yeah, it's hard. Within the policy community, the unwillingness to engage climate policy seriously is a problem, and I wish I had a solution. I've been credited with helping convert a couple people [including Niskanen Center President Jerry Taylor], and I wasn't even sure how I did it at the time, but hopefully, there will be more.

Climate change is a hard enough problem as it is. It's made that much harder by the large-scale failure of half of the political community to really engage. The idea that climate change can just be ignored either as a practical matter or a moral matter, I happen to believe that's an untenable position. I think there's room for a wide range of positions on how we think about it, what sorts of policies we adopt and so on, and we need to be having that discussion. There isn't any other issue that presents similar sorts of questions that is treated so dismissively.

You've also spoken out on broader political issues as a member of Checks and Balances, a group of prominent conservative and libertarian lawyers who have criticized some of the Trump administration's actions as unconstitutional. Can you tell me about why you decided to join and what the group is doing?

It's a group of right-of-center or center-right legal folks who are very concerned about the rule of law and about it not becoming a partisan principle. We felt that it was important to stand up for that notion and to try and create more room for people on the right side of the political spectrum to feel comfortable raising concerns about the rule of law and the health of our legal institutions so it doesn't become a partisan issue, because it's too fundamental and foundational to be allowed to become a partisan issue.

Speaking solely for myself, I have in the past been critical of instances when administrations have taken actions that were unlawful or were contrary to what I believe were the legal obligations of high-ranking officials. I like to think that that hopefully puts me in a better position to raise similar sorts of concerns when they occur now. I certainly hope that I've demonstrated a degree of consistency across administrations about making the case for interpreting the law in a particular way and understanding legal obligations in a particular way and the role of certain legal institutions in a particular way. And when people who were happy to criticize such failings three or four years ago are silent now, I think that's a reason to raise the issue.

You've joked, or maybe just stated, that you're not up for any positions in this administration.

I think people that know me would tell you that I tend to be fairly candid. I tend to say what I believe. I think that's important in being an academic; I think that's important in someone that believes in asking questions and trying to find the correct answer without regard for whether or not it's politically or otherwise convenient. And that sometimes is in tension with political advancement, and that's fine.

I've never lived my life aiming for any kind of appointment. If presented with the opportunity to serve, I would certainly take that very seriously. I believe very strongly in public service, but if my criticism of the president or what have you means that I won't be on the shortlist for this, that or the other thing, that's fine. Those sorts of decisions are above my pay grade, and I don't really worry about them.

I tend to think that any administration that — and as you know, this is not the first administration that may have decided that I was someone that they didn't want to have serve — if the fact that I'm particularly blunt or candid or what have you about certain questions means that an administration doesn't want me, then I probably wouldn't have been a good fit anyway.

As a lawyer, I believe very strongly that when you work for a client, the client directs what you do. The client's making the big decisions, and part of being a lawyer is being willing to set aside your own preferences for those of the client. So I believe I could serve in an administration that I'm not particularly fond of, or I'm not particularly fond of the president or what have you, but I understand and have no ill will or anything else about an administration deciding that's not something they want to do.

Of the Trump administration's environmental regulation or deregulation moves, what do you think is likely to be most lasting, and what do you think is likely to be most vulnerable in court?

That's a moving target. I think that some of the things that are below the radar might be. I'm very interested and curious to see what happens with some of the things the Trump administration is trying to do with regard to species protection. That doesn't appear to have been quite the flashpoint as some of the other things.

I'm on record saying that I think that clarifying and restraining federal jurisdiction under the Clean Water Act is important, both from a legal standpoint and from a policy standpoint. And it's important from a policy standpoint on multiple levels — one of which being that we need some certainty if there's going to be any hope for state and local and nongovernmental organizations helping to fill that gap, they've got to know what the gap is, and they've got to know what those boundaries are. It's too soon to know if the administration's going to be able to pull that off.

I think the administration's actions related to climate could have a lasting impact, but not in a good way. I was very critical of a lot of the things the Obama administration sought to do, but simply trying to roll back those actions without coming up with an alternative approach to climate is ... inadequate doesn't quite capture it.

At one point of time, I held out hope that this administration might have a kind of Nixon-goes-to-China type of moment with climate change. Thus far, I've obviously been very disappointed in that. I think the more time goes by, it will become harder to put forward a meaningful positive conservative climate agenda.

What's your family like? What do you do in your free time?

I'm married, I have two daughters. I certainly try and devote a lot of time that's not spent on work stuff to my family, and one benefit of being an academic is that I don't necessarily work fewer hours than other lawyers, but I have a lot more control over which hours those are. Hiking and biking are things that we like to do.

I spend as much time in Montana as I can get away with, which some years is more than others. I'm a senior fellow at the Property and Environment Research Center out in Bozeman, on the board at the Foundation for Research on Economics and the Environment, which is also in Bozeman. In a good year, that creates lots of excuses to be out in Big Sky Country, and that's something that we really love.

At present, for the next couple weeks at least, we live pretty far from campus right now. There are about 40 acres of conservation land behind our house, and they're right along the hike-and-bike trail in northeast Ohio and around the corner from Cuyahoga [Valley] National Park. Now that's coming to a bit of an end. One consequence of having to stand up the center is that we made a decision that I needed to live closer to campus.

On a good day, I can be sitting out on our back patio reading some D.C. Circuit decision, watching the birds. If I'm lucky, I'll see a beaver or a turtle. There's a frog that loves to camp out on my grill for some reason.

There are an incredible amount of opportunities in northeast Ohio, so it won't be like we're giving it up completely. It just won't be literally in my backyard anymore. But on the plus side, I will have a much shorter commute, and it will be much easier to get to and from campus, which has its own benefits in terms of time and environmental benefits. I think I'll even be close enough to be able to bike to work sometimes.

This interview has been edited and condensed for clarity.

Twitter: @ellengilmer Email: egilmer@eenews.net

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