January 2009 - Posts
More than thirty years ago, one of the cornerstones of environmental law was laid at Yale Law School when Gus Speth ’69 (now dean of the Yale School of Forestry & Environmental Studies) and a group of his classmates gathered in the Law School dining hall and started sketching out what would become the Natural Resources Defense Council. Today, Yale Law School continues to build on its strong tradition of environmental law.
At the forefront of this next generation is Dan Esty ’86, Hillhouse Professor of Environmental Law and Policy at Yale Law School and the Yale School of Forestry & Environmental Studies. Recently the Law Report sat down with Professor Esty to learn more about the direction of environmental law today, and its study at Yale. In the Q & A that follows, Professor Esty discusses, among other things, the new data-driven approach to environmental law and his belief in putting innovation and the resources of the private sector at the heart of the search for clean energy.
YLR: Why is going green such a hot topic right now?
Esty: Top executives across the business world have come to the conclusion that going green is essential to being competitive in today’s marketplace…Society faces significant environmental challenges with climate change, availability of water, air and water pollution, and exposure to chemicals and heavy metals. I think companies now understand that those who can provide solutions to these issues stand to profit.
There are also big potential payoffs from investments in what we call “eco-efficiency.” Specifically, efforts to reduce energy consumption and cut waste and inefficiency improve resource productivity, which lowers costs and improves profitability.
There are also a lot of companies looking at ways to reduce environment-related risks as a point of competitive advantage. For example, if Mattel had better managed its supply chain, it would not have had to recall 18 million toys, some of which were coated in lead paint, at a cost of hundreds of millions of dollars.
All of this signals a shift to a new approach to environmental regulation focused on promoting innovation and engaging the private sector in driving technology development. Under the old model of “command and control” mandates, the government not only sets a standard that has to be complied with, but in many cases, dictates the precise technology that a producer has to deploy, such as a particular kind of scrubber on a smokestack or effluent filter. We’re evolving now toward a new approach that relies much more on economic incentives and market mechanisms. Under the new approach, the government tells you how much you pay for the harm you cause. This creates a logic for businesses to think about what they’re doing and to try to reduce emissions. This “pay for harm” model also creates a very important incentive for innovation because companies begin to think not only about how to bring their own emissions down, but also how to come up with the very best solutions to sell to their customers and everyone else.
In your book Green to Gold, you discuss the role of the private sector. What exactly makes the private sector so important?
It turns out that the business world is better placed to do technology development than the government. When you throw a challenge to the private sector, people approach it with hundreds of different points of view and lots of options are tried out. That diversity enriches the search for innovation. The private sector is also willing to take risks that the government often can’t or won’t. A government official balks at an innovative solution with a one in ten chance of a successful payoff. But in the venture capital world, a one in ten chance of payoff is expected…The government might spend a few million or, if we get really ambitious, a few billion dollars to fund potential solutions. But over the last year alone, more than 100 billion dollars of private capital has been injected into the “clean-tech” arena. The scale of the private sector’s capacity to innovate is just much greater than the government’s, and frankly, the private sector rewards success in a way that the government is unable to match.
This move toward an innovation-focused approach to environmental protection creates opportunities for companies of all sizes and types—from giant conglomerates to garage-based inventors. This creative process promises to move us toward a “clean energy” future in the next couple of decades. Innovators are currently experimenting with various kinds of solar power, more efficient wind energy, and electricity from waves, tides, and ocean currents. Some companies are even exploring algae as a potential fuel source. Others are working with second-generation biofuels, moving beyond corn-based ethanol to prairie grasses and agricultural waste that provide the foundation for cellulosic ethanol.
Given all that, what do you think the government’s role should be? What can the government do? 
Let me be very clear: when I say the government shouldn’t be doing the technology development, it doesn’t mean that government doesn’t have a role. To the contrary, the government has to be all the more adept at crafting incentives to engage the private sector in this innovation process. There needs to be a carefully constructed portfolio of incentives that draws the business community into the search for solutions—attracting venture capitalists, private equity, and other investors to put significant resources into the environmental solutions arena. We need to lure the creative spirits that exist across the United States and around the world to focus time and talent on addressing pollution control and natural resource management challenges. Our goal should be to attract the best and brightest talent away from developing the next video game and toward meeting our energy and environmental needs.
What do you see as the biggest environmental or sustainability issue facing the new administration?
Frankly, the next President will need to employ a multi-pronged agenda to make up for the painfully slow progress made across the spectrum of environmental challenges over the last decade. Climate change looms largest among the immediate problems we face. It has such broad consequences and affects decisions made by every individual, household, and company across our society. U.S. leadership is essential if we are to have a successful global climate regime. Of course, the nation’s economic troubles overshadow everything else. So I expect the new administration’s initial environmental focus to be a “green economy” initiative designed to help stimulate growth.
This is probably the million-dollar question: how do we extract ourselves from fossil fuels?
I think there is bad news and good news in terms of getting beyond fossil fuels. The bad news is that our energy structure has been dependent on fossil fuels for a very long time so it’s going to take time and tremendous effort to remake the infrastructure on which our society and economy is built. To move to a clean energy future will require a broad base of incentives and really transformative thinking.
The good news is that the public is ready for change in a big way. I think the public is very frustrated by the war in Iraq and more broadly believes that the Middle East is a very complicated part of the world—one that we don’t understand very well. Having the energy supply lines of our country run through that part of the world, for many people, seems unwise. And the next tier of oil suppliers—Russia, Kazakhstan, Nigeria, and Venezuela—are also unattractive places to be dependent on. Research we have conducted at the Yale Center for Environmental Law and Policy suggests that the public wants to break this dependence on foreign energy sources. Americans are ready for the alternative energy future, willing to pay a premium for clean energy that also meets our security and strategic interests.
Beyond that, people are frustrated by the budget pinch of high energy prices. Fundamentally, we face a structural imbalance between energy supply and demand. We just don’t have a lot of new fossil fuel sources to tap. Investments in conservation and energy efficiency can ramp down demand. But the real solution lies in new sources of supply, which means alternative energy. We must move toward a clean energy future and embrace the commitment and effort that comes with figuring out the specifics of which renewable energy options can be made cost effective.
Could you talk a little bit about the history of environmental law and put it in context for us as far as this next generation of environmental law?
Modern environmental law was invented, in many ways, by people at Yale. In the early 1970s, we had a crew of folks here who sat in the Law School dining hall contemplating the deteriorating environmental situation across our country. They became convinced that something needed to be done. Gus Speth, who is now the dean of the School of Forestry & Environmental Studies, and some of his classmates decided to write a proposal to the Ford Foundation for money to launch an environmental advocacy group. That group became today’s renowned Natural Resources Defense Council. Speth and his friends were consciously following the civil rights model. Their vision was to get a number of landmark, framework statutes—for air, water, and waste—adopted, and then, through their advocacy group, bring forward test cases to flesh out the details of the law. They were, of course, very successful in using law as a tool for change. And I think if you look across the environmental world more broadly, Yale graduates occupy a significant number of leadership positions. From my point of view as a professor, one of the most exciting things about teaching here is watching the next generation of environmental law come to life here at Yale. Our students are never satisfied with learning what the law is. They always want to think about what it could be and should be.
I hope my work at the business-environment interface has helped people develop a new understanding of the best path forward. Our work at the Yale Center for Environmental Law and Policy, and at Yale in general, has highlighted the importance of innovation as well as being more data-driven and empirical in decision-making. Our Environmental Performance Index ranks 149 countries on 25 different dimensions of their pollution control and natural resource management. These indicators are valuable to decision makers. They facilitate comparative analysis, highlighting leaders and laggards and making it easier to spot best practices.
There is a great deal that Yale has done in the past and is doing now to advance environmental law. Perhaps the most exciting recent development is the renewal of the law school’s core environmental faculty. The addition of Doug Kysar from Cornell and Tom Merrill from Columbia gives us extraordinary depth. Both of them are true leaders in the environmental law and policy arena.
And we are lucky to still have Carol Rose, albeit part-time. She continues to be one of the great thinkers at the interface of environment and property. Dan Kahan is another force with his extensive studies on understanding risk and how people manage risk in their lives. We are also fortunate to have Don Elliott continuing to teach courses. He is one of the pioneers in thinking through the way the economic incentives should play into the legal structure. And, of course, we have inspirational figures like Bruce Ackerman, who has been at the heart of the battle for a new approach to environmental protection for three decades, as well as Susan Rose-Ackerman, whose comparative regulatory analyses have helped to illuminate the strengths and weaknesses of the environmental regimes of the United States and Europe. We’re fortunate to have people who contribute to the broader backdrop that environmental law sits in—administrative law. Jerry Mashaw is, of course, the true leader of the field in many regards. Many of us, including me, have had our own approaches to environmental regulation shaped by Mashaw’s broad-based vision of how administrative law works. Peter Schuck’s thinking about how to refine administrative law further enhances our faculty resources here at Yale.
What is unique about the study of environmental law at Yale Law School?
Yale has great strengths when it comes to studying environmental law. Most notably, the presence of the country’s leading environment school right across campus gives our students a breadth and depth of curricular offerings that really can’t be found anywhere else. Someone coming to Yale with an interest in the environmental arena has the opportunity not only to take Law School courses, but also a wide array of courses across campus. The School of Forestry & Environmental Studies provides courses across a wide range of topics. The School of Epidemiology and Public Health provides a broad-based set of environmental health offerings. Our International and Area Studies program gets people to think from a global perspective about environmental challenges. Yale’s Divinity School has provided a platform for discussing ethics and the environment, so people can explore the moral underpinnings of a commitment to environmental protection. This is important because it is becoming increasingly clear that spirituality has a significant role to play in motivating people to address environmental challenges. And we have an economics department with fabulous faculty resources, as well as the School of Management, where the interface between business and environment, and economics and the environment, comes together. This interdisciplinary convergence is fundamental to good public policy and sound environmental decision-making more generally.
For more information about Environmental Law at YLS, visit www.law.yale.edu/environmentallaw.
Yale Law School counts among its graduates a great number of leaders in the environmental arena. The following profiles highlight just a few of the alumni involved in the “green” arena.
Calling for Transformative Change
James Gustave Speth ’69
Dean, Yale School of Forestry & Environmental Studies
As a boy in the rural South Carolina low country, James Gustave “Gus” Speth grew up hunting, fishing, and swimming the Edisto River. Each summer he visited his grandparents on Lake Junaluska in the North Carolina mountains. The year he turned thirteen, Speth arrived for his summer in the mountains to find the lake wiped out—dead—due to a major pollution incident.
In Speth’s words, “That did it.”
The death of that lake propelled Speth toward a lifetime devoted to environmental advocacy. Now, with more than forty years of work as an environmental advocate and adviser to his credit, Speth is calling for a radical departure from the environmental movement’s strategy as he urges Americans to rethink our very way of life.
Speth’s work got its first real foothold during the late 1960s when, as a student at the Law School, he and several of his classmates began planning out what was to become the Natural Resources Defense Council, America’s most well-endowed and well-respected environmental organization. After NRDC, as the principal White House adviser to President Carter on environmental affairs, Speth was responsible for the development and coordination of the Carter Administration’s environmental program. Speth again advised the White House about natural resources, energy, and the environment when he was tapped to be senior adviser on President Clinton’s transition team in 1992. For much of the 1990s, Speth led the United Nations Development Programme, the principal arm of the United Nations for funding and coordination of international assistance for development.
Since 1999, Speth has been at the School of Forestry & Environmental Studies, where he now serves as the Carl W. Knobloch, Jr. Dean and Sara Shallenberger Brown Professor in the Practice of Environmental Policy. He is the author of several books, including most recently, The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability and Red Sky at Morning: America and the Crisis of the Global Environment.
In The Bridge at the Edge of the World, Speth details the deterioration of the planet. He writes, “Half the world’s tropical and temperate forests are gone. The rate of deforestation in the tropics is about an acre a second. Half the planet’s wetlands are gone. An estimated 90 percent of the large predator fish are gone and 75 percent of marine fisheries are overfished, fished to capacity or depleted, up from 5 percent a few decades ago. Twenty percent of the corals are gone; another 20 percent severely threatened. Species are disappearing about 1,000 times faster than normal. The planet has not seen such a spasm of extinction in 65 million years, since the dinosaurs disappeared. Each year desertification claims a Nebraska-sized area of productive capacity worldwide. Toxic chemicals can be found by the dozens in essentially every one of us.”
Speth is now calling for a transformation in American society as he points to American “affluenza” as one of the root causes of the escalating deterioration of the planet. In order to save the planet, Speth argues, we must challenge our own consumption and move from a “consumer to conserver society.”
“All we have to do to ruin the planet is keep doing exactly what we’re doing today,” Speth said while serving as a panelist at the Law School’s Alumni Weekend in October.
“Working within this system alone is not going to solve the problem,” he continued. “What we really need is transformative change within the system itself if we’re going to save this planet.”
Redeveloping Brownfields
Thomas Darden ’81
CEO, Cherokee Investment Partners
Fifteen miles north of Montreal, a former General Motors manufacturing site is gaining new life. Until recently, the 232-acre industrial site was a ghost town, plagued with soil contamination and littered with abandoned debris. Now more than a thousand housing units, shops, offices, a recreation center, and an urban town square are starting to rise on the once discarded site. The project, known as “Faubourg Boisbriand,” is one of some five hundred redevelopment sites taken on by Cherokee, a firm headed by Tom Darden ’81.
Under Darden’s leadership, Cherokee invests in the acquisition, remediation, and sustainable development of underutilized or contaminated properties (called “brownfields”). Darden sees opportunity in properties where most other people would see only difficulties. Many of the projects are developed in or in close proximity to urban centers. Faubourg Boisbriand, for example, will be in walking distance to a regional commuter rail line that connects the site to downtown Montreal.
The same story of redevelopment is repeating itself at other Cherokee project sites. Southwest of Houston, a mixed-use community will be built on the site of a former Imperial Sugar Company plant—the oldest continuously operating business in Texas before it closed in 2003. In San Francisco, Cherokee is completing remediation work and building on a site once plagued by lead contamination.
Darden’s inspiration for redevelopment work came years ago, while on a business trip in Spain where he was purchasing brick manufacturing equipment. He noticed workers building on walls that were close to two thousand years old. “It was so compelling,” he remembers, “it gave me a new mental construct for how growth could happen in the U.S.”
Redevelopment and urban infill projects are low-hanging fruit in the mission to green the planet, according to Darden. Buildings, he explains, use 30 to 40 percent of all energy consumed in the U.S. The location of buildings accounts for another 20 percent of energy consumption. Taken together then, buildings and their locations make up half of the energy problem in the country.
“Americans need to think more about where we build,” Darden says. “If you build the right kind of buildings, in the right places, you can address half of the energy equation.”
Darden attended the Law School before an environmental law program was in place. He took property law courses that touched on some of the work he would do in the future, but the real benefit of law school, he says, was that it helped establish a way of thinking.
“It was a great place for me to rethink how to make a positive contribution to the environment,” he says. “I went in as kind of this bomb thrower…and came out with a sense of how to approach things differently, how to make a difference from within the system.”
After graduating from YLS, Darden went to work for Bain & Company, where he did energy efficiency cost reduction work in the steel industry. He soon branched out on his own, purchasing what would become Cherokee Sanford Group, the largest privately-held brick manufacturing company in the United States. Darden’s environmental bent and ingenuity came into focus when he converted the plant’s fuel source from fossil fuels to sawdust. In 1985, Cherokee took on the work of cleaning up contaminated soil. That arm of the business eventually led Darden to redevelopment work.
Today, one of Cherokee’s biggest challenges is changing public perception about urban infill and redevelopment. Trying to convince the American public that urbanization is positive for the environment-—that densely populated areas are less resource-intensive than the more superficially “green” suburbs—is a tough sell. “The public at large is not as aware [as policy makers] of the environmental impact of real estate on the environment,” Darden says. “There is nothing less green than big houses built on grassy lots around golf courses.”
In addition to having a business mission focused on advancing sustainability, Cherokee has also funded or helped to raise more than $30 million for philanthropic works. The company’s outreach program operates in the U.S. and internationally, helping those who have been affected by environmental disasters. In India, “Cherokee Gives Back” is committed to addressing problems stemming from the Union Carbide pesticide plant disaster that killed thousands in 1984. Closer to home, Cherokee is tackling the aftermath of the Katrina disaster as a principal partner in actor Brad Pitt’s “Make It Right” project, which is building a neighborhood of affordable, energy efficient and sustainable homes in New Orleans’ Lower 9th Ward.
“It’s great to be involved in any kind of building position, whether it’s a new idea, a physical structure or a company,” Darden says. “Seeing change happen is a cool thing.”
Advocating for the Environment
Liz Barratt-Brown ’91
Senior Attorney, International Program,
Natural Resources Defense Council 
Liz Barratt-Brown ’91 is passionate about Canada’s Boreal Forest—and about stopping the strip mining that has already forever changed the forest’s landscape.
“Oil from this region—called tar sands—is literally scraped out of what was previously part of a beautiful forest of green, slow-growing trees and winding rivers, and the nesting ground for nearly 40 percent of our songbirds and waterfowl,” explains Barratt-Brown.
As an attorney in the International Program with the Natural Resources Defense Council (NRDC), one of the nation’s top environmental action groups, Barratt-Brown has spent twenty-five years working tirelessly on a number of key issues. Among the projects she has worked on: building and implementing the global warming, biodiversity, and ozone layer treaties; strengthening international institutions; and instituting corporate purchasing policies around forest conservation and energy use.
Barratt-Brown, who worked for the NRDC and in the U.S. Senate for six years prior to law school, was happy to rejoin the group after graduating from Yale.
“I love the organization and its mission,” she says.
“We have more than one million members and activists. I’ve seen the organization grow tremendously, but it still has at its core a commitment not only to the environment, but to people and equality. I appreciate that NRDC works for every American and for people and places around the world.”
Currently, Barratt-Brown is working on slowing the development of a new, high-carbon synthetic fuels industry in North America, focusing her efforts on the strip mining for oil taking place in the Boreal Forest. Starting in the Yukon Territory, the Boreal Forest forms a band more than 600 miles wide sweeping southeast to Newfoundland and Labrador. The forest is one of the planet’s last large intact ecosystems and the largest terrestrial storehouse of carbon.
“Boreal Forest-derived oil now makes up nearly eight percent of our daily oil use and its production releases three times the global warming pollution per barrel than conventional oil,” she says.
She points out that while protecting the forest is a major goal of NRDC work, the group is also contrasting the strip mining of oil with cleaner alternatives, such as fuel efficiency, improved public transportation, and renewable energy.
“This is a very real example of the fork in the road we find ourselves at the turn of the 21st century. We can use American ingenuity and policy to move us to a different energy path or we can scrape the bottom of the barrel and lose irreplaceable natural resources.”
Barratt-Brown spends a great deal of her time educating members of Congress and large oil-using corporations about the Boreal Forest, as well as about cleaner alternatives.
“I also work to put in place low carbon fuel requirements, again both at the governmental level and within corporations,” she explains. “We just launched, for example, a Sustainable Aviation Fuel Users group with Boeing and Virgin Atlantic Airways and ten other airlines that will use, as its basis, research from a team at the School of Forestry & Environmental Studies on jatropha, a potential fuel source.”
Fighting Pollution and Poverty
Van Jones ’93
Founder, Green for All
Van Jones graduated from Yale Law School more concerned with vulnerable people than a vulnerable planet. Social justice and civil rights were his main focus and, to that end, in 1996 he founded the Ella Baker Center for Human Rights. Jones’s main mission was to get kids out of jail and into jobs.
Fast-forward to 2000. Burned out from what Jones describes as “too many funerals and too many court hearings that ended badly,” he crossed the bay from his hardscrabble home base of Oakland, California, to glittering, New Age Marin County to attend a meditation retreat.
“Everyone was doing yoga and eating these things called salads and tofu,” Jones remembers with a laugh. It was the first time he saw clearly what he has now come to call the “eco-apartheid.” While the mostly white, affluent Marin County was embracing all things green, the predominantly African-American city of Oakland was mired in unemployment and industrial pollution.
“I had this kind of epiphany,” Jones remembers, “that Oakland needs green jobs, not jails.”
As Jones saw it, there were two ways to proceed. “On the one hand, we have the opportunity for more work, more wealth, and more health,” he says. “On the other hand, we have an eco-apartheid.”
Jones soon founded Green for All, a national organization dedicated to building a “green economy” connecting the environmental movement with the work for social justice.
Jones sees a growing green movement as part of the recipe for improved economic health for the United States, and a cornerstone of the next economy. “We can simultaneously create an economic and environmental renaissance,” he says. “The problem with the U.S. economy is that we’ve been borrowing rather than building—our consumption, ecological destruction, and economic downfall are all interrelated,” he adds. “We have to start producing something in the United States.”
Wind turbines—too heavy to be shipped from overseas—have been one new American product gaining ground thanks to increased environmental awareness. “One thing that we can produce here is clean energy,” Jones says. “We have a Saudi Arabia of wind and solar energy in our Plains States.”
Green for All works to train people who need jobs—many of them minorities—in the “green collar” sector. Beyond being about greening the planet, Jones sees the movement as central to the 21st century civil rights agenda.
“Everything that is good for the environment is also a job or a business or an economic opportunity,” he says. “Buildings don’t weatherize themselves. Solar panels don’t install themselves. Gardens don’t plant themselves.”
“It would be very easy to create eco-apartheid jobs,” Jones adds. “The trick is to create green collar jobs that are regulated in some way. We don’t want to create a solar sweatshop… We need to do this in a way that would make Dr. King proud.”
Protecting the Environment at Work and at Home
Michael Fisher ’94
Environmental Protection Agency lawyer Michael Fisher ’94 grew up in a small town in the Midwest, where he spent a lot of time outdoors with his parents. They weren’t backpackers or campers, says Fisher, but they passed on to him their appreciation for nature.
Fisher started thinking about environmental issues as a career after graduate school, when he traveled through Eastern Europe, the U.S.S.R., and China and saw remarkable examples of environmental destruction, caused by the lack of political accountability.
Today, he works to achieve environmental accountability in the U.S., as head of the legal division of EPA’s criminal enforcement office. He and his wife Christy ’94 are also personally committed to protecting the environment. They made a conscious choice to live where they can walk to work or take public transit, and their home runs on 100% wind power. Still, says Fisher, he doesn’t focus too much on the “personal virtue” aspect of environmental decisions.
“Each of us should do what we can to protect the environment,” he says, “but individualized action can’t keep the air safe for our kids to breathe or ensure that our tap water is safe to drink. And more complex problems like climate change are even further beyond our individual ability to address. Environmental protection ultimately depends on the public paying attention to these issues and educating themselves, then voting their environmental principles.”
Examining Climate Change and Energy Policy
Robert Sussman ’73
Robert Sussman ’73, a senior fellow at the Center for American Progress in Washington, D.C., is a leading expert on climate change and energy policy. During the Clinton administration, he served as deputy administrator of the Environmental Protection Agency and, as second in command, played a lead role on Superfund, global warming, science policy, and the environmental aspects of NAFTA.
Sussman most recently lent his expertise to the Law School during Alumni Weekend 2008: Imagining the Future, where he participated in a fascinating discussion on the Next Generation of Environmental Policy. Sussman, a former partner at Latham & Watkins and head of its environmental practice, discussed the Supreme Court’s landmark 5-4 decision in Massachusetts v. Environmental Protection Agency in 2007, which he said “changed the environmental policy landscape in a very profound way.” In the case, twelve states and a number of cities brought suit against the EPA to require it to regulate greenhouse gases as pollutants under the 27-year-old Clean Air Act. Sussman said that the favorable decision resulted in the current Supreme Court “basically deciding that the scientific evidence on global warming was too compelling to ignore.”
“When I went to law school, there were no environmental law courses,” Sussman recalled. “But interest in the environment was definitely building and we had the first Earth Day in 1970. Charlie Reich ’52 had already written The Greening of America, which was a formative book for me. So I think the atmosphere of the times—and the early commitment of Yale Law grads to public interest environmental law—were key influences for me.”
Winds of Change
Steve Vavrik ’96
Steve Vavrik ’96 is a farmer—but you won’t find him driving a tractor, milking a cow, or baling hay.
Vavrik, vice president of origination, and his colleagues at their company First Wind focus exclusively on the development, ownership, and operation of wind farms.
“At First Wind, we create wind power plants from just an idea,” Vavrik explains. “Successful development requires the combination of wind resource, revenue, equipment cost, and creative financing.”
“What I enjoy most is seeing how this all comes together from the perspective of the owner. In addition, I feel a tremendous sense of pride when one of our projects starts operating. While all projects are challenging, renewable energy projects help create a positive legacy for future generations.”
First Wind is currently focusing its efforts on developing wind farms in the northeastern and western regions of the U.S. and in Hawaii, and is already producing energy through three operating wind farms. The company is looking to develop wind energy projects in other markets as well.
According to the American Wind Energy Association, wind power is now one of the largest sources of new electricity generation of any kind. Wind projects accounted for about 30% of all new power-generating capacity added in the U.S. in 2007.
Vavrik joined First Wind after a stint with GE Capital as a financial associate. He has ten years of energy industry experience under his belt and is in charge of creating and executing the revenue plans for First Wind’s power projects. This involves identifying the key market opportunities and risks, developing relationships with the power buyers, and then negotiating and executing the power purchase agreements.
Videos of panels and galleries of photos from Alumni Weekend 2008 are available at www.law.yale.edu/alumniweekend.
Alumni Weekend photographs by William K. Sacco, Yale University Media Services
President Clinton photographs by Robert A. Lisak
Hot-button issues of national security, health care, the economy, immigration, and the environment were the subjects of discussion when more than one thousand graduates and their guests gathered at the Law School for Alumni Weekend this past October. Former classmates became reacquainted and new friendships were formed as alumni gathered for panels, meals formal and informal, receptions, tours of the Law School, and a special breakfast with students. Panels focused on the challenges and opportunities for the next administration. President Bill Clinton ’73 introduced the subject of global challenges to the weekend’s discourse as he spoke to an audience of YLS graduates, faculty, staff, students, and others in the University community.
Charles Reich ’52 and John Simon ’53 received the Award of Merit during this year’s Alumni Weekend. Michael A. Varet ’65 presented the Award to Reich, who served as a professor at YLS from 1960–74, and as a visiting professor at the Law School in both the mid 1970s and early 1990s.
Ernest Rubenstein ’53 presented the Award to Simon, who is now Professor Emeritus of Law, having served as Professor from 1962–2003.
Reich and Simon were also celebrated during a panel titled, “In the Groves of Academe and Beyond: The Lifetime Labors of Charles Reich ’52 and John Simon ’53.”
Honored posthumously during Alumni Weekend 2008 were John T. Baker, the first African-American professor on the YLS faculty, and Catherine Roraback ’48, a pioneering civil liberties lawyer.
Toward the Next Generation of Environmental Policy
Both brass tacks talk of “greening the grid” and more philosophical discussion of the ethical and spiritual aspects of sustainability were part of an Alumni Weekend panel on the future of environmental policy. Daniel C. Esty ’86, Hillhouse Professor of Environmental Law and Policy, served as the panel’s moderator. Panelists included Liz Barratt-Brown ’91, Senior Attorney, International Program, Natural Resources Defense Council; Douglas Kysar, Professor of Law, Yale Law School; J. Gustave Speth ’69, Dean, School of Forestry and Environmental Studies, Yale University; and Robert M. Sussman ’73, Senior Fellow, Center for American Progress.
Barrett-Brown began the discussion with an overview of what the next administration can do to improve environmental policy. “We need to put science back into our decision making,” she said, while also stressing the need to reduce oil use and to move transportation to a grid and then “green” that grid. “We are at an incredible crossroads right now on global climate and energy,” she said.
Sussman spoke about the Supreme Court’s decision in Massachusetts v. EPA and the Bush administration’s reaction to that ruling. In Sussman’s view, the Bush administration has stonewalled the Supreme Court—a tactic that he believes will not hold for the next administration. “The Supreme Court was very clear,” he explained, “and an administration which is legally honest will have no choice but to move forward.”
Kysar took up what he called “an unfashionable argument”—that environmental law’s future lies in its past. “Before we write the next chapter, let’s try to enforce the environmental laws we already have,” he argued.
Speth took a slightly different tack, arguing that nothing short of transformative change and transformative thinking, more government regulation, and a strong grassroots movement will save the planet.
“I have a simple message,” he said, “that despite historic efforts by the environmentalists—of which I am one—we are, in fact, steadily losing the battle to save the planet and have been for some decades. I think that it follows that doing more of the same, perhaps even a lot more of the same, is not going to work in the end.”
The following quotes are excerpted from comments made by panelists during Alumni Weekend 2008. For videos of Alumni Weekend, visit www.law.yale.edu/alumniweekend.
David D. Cole ’84
Professor of Law, Georgetown University Law Center
“I think the regular courts have an obligation to check abuse when they
see it, and I think actually one of the nice surprises of the post-9/11
era is that the courts have been more willing to do so than in any
prior period in American history. And it’s not just the U.S. courts. If
you look around the world, the courts of last resort in the U.K., in
Germany, in Israel, in Canada, have stood up for human rights and the
rule of law in the face of claims of national security and the need to
fight terrorism.”
from Liberty and Security in the Next Administration: War, Rights & Antiterrorism panel
Bruce Morrison ’73
Chairman, Morrison Public Affairs Group
“The
good thing about immigration and the United States is that we believe
in immigration. All over the world, people have migrated…but you will
search long and hard to find societies in which they actually believe
in immigration, as opposed to guest workers or some other form of
temporary tenure…That has not been the building block of American
immigration. Our basic idea of immigration…has been that you come to
become an American. And I think that’s a very powerful and important
idea. It’s given us great strengths that we should defend and build
upon.”
from Immigration Policy in the 21st Century panel
Robert C. Pozen ’72, ’73 JSD
Chairman, MFS Investment Management
“In my view, the first thing the Fed needs to do is to guarantee loans between banks. It is unbelievable that banks like Citigroup are unwilling to lend to Bank of America. Now that we’ve seen what’s happened to banks like Wachovia, people are just afraid to do it. Well, if we can’t get these banks lending to each other, we will never get liquidity in the system. If we start to have guaranteed loans between banks, then you will see money market funds being willing to buy commercial paper-—and commercial paper is essentially the lifeline of the economy. Commercial paper is short-term debt which finances inventories—for people in business, it finances their cash flow. If we don’t revive this commercial paper market, we are going to have a level of liquidity crisis that’s very, very serious.”
from Is This Just a Normal Downturn — or Is Something Badly Broken? Panel
Brent L. Henry ’73
Vice President and General Counsel, Partners HealthCare System
“The reality is a lot of people have signed up in Massachusetts. And so right now, the percentage in Massachusetts of uninsured has really declined significantly. It’s now the lowest state in the nation with respect to uninsured…And so when people look at Massachusetts, the view is, it was a win-win for everybody. The downside is that it has cost more…and the waiting time to see physicians has skyrocketed. As a result, there’s a lot of pressure to increase the number of primary
care physicians in Massachusetts. The other thing is that there is a tremendous pressure now on cost in Massachusetts…people see that if this is going to be effective nationwide, there have got to be other alternate focuses on how we control costs.”
from Health Care Reform in the Next Administration: Promises and Perils? panel
Revised version of a lecture presented at the Gardiner Program in Psychoanalysis and the Humanities, Yale University, October 22, 2008
by Robert A. Burt
Alexander M. Bickel Professor of Law, Yale Law School 
Like all political leaders, Barack Obama offers an idealized image through which supporters can see their own hopes, their “best selves,” reflected through an identification with him. Freud depicted this bond between leader and followers in his wonderful little monograph, Group Psychology and the Analysis of the Ego, with his characteristic flair: “A group,” he wrote, is clearly held together by a power of some kind: and to what power could this feat be better ascribed than to Eros, which holds together everything in the world?” (p. 92) It is especially illuminating to view Obama’s hold on the imagination of his followers through Freud’s lens – that is, as essentially erotic.
The speed of his ascent to the presidency is one clue to this characteristic. Obama appeared on the national stage only four years ago when he was a virtually unknown state senator running for his first national office, as United States senator from Illinois. This first appearance – the keynote address to the Democratic National Convention in 2004 – is, I think, a defining starting point for understanding the cultural meaning of his victory. Obama’s keynote speech was not merely good; it was thrilling. From nowhere, he was immediately seen as a potential presidential candidate.
The sudden way that he captivated public attention resonated throughout his candidacy. It was the basis for the playful designation of him as “the One,” sometimes offered with awe, sometimes with jealousy, sometimes with disdain as in “That One.” At the Al Smith dinner in New York in mid-October, Obama himself did a riff on this, saying that he wanted to rebut rumors that he had been born in a manger and revealing that he had actually been born on the planet Krypton and sent here by his father, Jor-El, to save the world. Whether he is seen as Superman or Jesus Christ Superstar, there is something quite out of the ordinary about the original impetus for Obama’s candidacy and his rapid rise from nowhere. Beginning with his keynote speech in 2004, Obama’s relationship to his followers was, in the familiar phrase, love at first sight.
Now I must quickly add, this was not everybody’s response – and for many of those who were smitten, this love was not without ambivalence (what love is?) nor has it been easily sustained with the same intensity over the long electoral campaign. But I think it is helpful, in understanding the phenomenon of his candidacy, to see its fundamental erotic charge from its outset – especially because I think this erotic quality is interwoven with and reinforced by the fact of his race, that he is an African-American who, when examined attentively, is also half-White. In his person, Obama both invokes and unites the deepest, most bitter division in our national experience. He both invokes our Civil War and holds out the promise that we can finally, at long last, end that Civil War – or put another way, that we can finally recognize that the War has in fact already been ended.
In this sense, Obama’s candidacy represents the climax of the Civil Rights revolution of the 1950s and 60s – the so-called Second Reconstruction, following the aborted efforts after Emancipation a century earlier. Although Obama has not explicitly claimed this, he has implicitly offered us a return to the ideal that was at the core of whites’ sympathetic identification with black claims at the high point of the civil rights movement in the early 1960s. This claim was to be included in a mutually supportive communal relationship from which blacks had been excluded – first through enslavement and then through the forced subordination of racial segregation. The injustice of this exclusion only became clear to a majority of whites when they themselves felt alienated from an inclusive communal identity; this was whites’ understanding not simply of blacks but of themselves in the 1960s. This empathic identification faded after the racial and social turmoil of the late 1960s; but Obama’s election signifies the possibility of renewed sense of shared membership in a mutually supportive relationship – not only with blacks but more generally. I can illustrate the erotic connection at the core of this communal bond from a moment in my own life when the personal meaning of the Black Civil Rights movement came into focus for me.
Here is my memory. In 1968, I was legislative assistant to U. S. Senator Joseph Tydings, a liberal Democrat from Maryland, and had worked for him to enact the Fair Housing Act, forbidding race discrimination in the sale or rental of housing. During the crucial vote in the Senate in March 1968 to end the Southern filibuster on this measure, I sat in the Senate gallery next to Clarence Mitchell, Jr., the head of the NAACP Washington office. I had seen Mitchell many times before in strategy meetings convened by the Democratic manager of the bill, Senator Philip Hart; but we had never spoken, and I was not sure that he even recognized me. But when cloture was voted and the cheering in the Senate chamber had subsided, I turned to look at Mitchell and saw that he was weeping just as I was weeping. And we hugged one another.
This embrace might seem unremarkable today, when so many whites and blacks have comfortable social relations, even intimate relations, with one another and when two men of whatever race routinely hug one another in public settings. But in March 1968, our public embrace was unusual on both scores, race and gender. I was deeply moved by it, in ways that I could hardly understand.
Mitchell and I left the Senate gallery together. It turned out that his office and my home were close by one another on Capitol Hill. As we walked together, he told me about his grandfather who had been born a slave, how grateful he had been to this country for his freedom, how proud he would be now that America was redeeming its promise by this extraordinary public law, and how proud he would be that his grandson had played some part in bringing this about. I in turn told Mitchell about my grandfathers who had been Jews in Tsarist Russia and had fled to America in order to avoid pogroms and forced conscription, how thankful they were for the freedoms they had found here, and how proud they would be that their grandson had played some small role in helping toward the enactment of this law.
This momentary coming together – our weeping, our embrace, the similar passage of our grandfathers from enslavement to freedom, our shared love for our country – was about more than enactment of this new law. Our joining together felt to me like a liberation from some oppressive struggle, in which racial differences, gender identities and age differentials (Mitchell was old enough to be my father) were transcended by a sense of shared possibilities.
I don’t think I was unique among whites in feeling that my own sense of personal liberation was somehow linked to the cause of Black people’s liberation from racial subordination. This linkage was widely felt at the time. It was given especially powerful acknowledgment in Lyndon Johnson’s speech – many would say his greatest speech – to a joint session of Congress in March 1965, urging enactment of the Voting Rights Act in immediately response to the Selma, Alabama march. In that speech, Johnson stated, “What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it’s not just Negroes, but really it’s all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”
Johnson thus appropriated the rallying cry of the Black civil rights movement – “we shall overcome.” But this was not plagiarism, it was not an act of theft. It was an assertion of identification between blacks and whites – “their cause is our cause” and our sense of freedom depended on theirs. But why should this be? How could it be when the country had been so deeply divided, so racially polarized for so many years as whites systematically degraded and suppressed blacks, as whites built their own sense of social identify on a perceived difference – a rigidly enforced difference – between themselves and blacks?
I don’t have a complete answer to this question. But I do believe that something happened in American culture in the years immediately following the Second World War that eroded the dominant sense of an unbridgeable difference between blacks and whites and that put in its place a growing conviction that blacks and whites were brothers and sisters under the skin, so to speak – not simply that blacks and whites were fundamentally alike but even more powerfully that blacks’ historic oppression had become mirrored in whites’ growing sense of their own vulnerabilities.
This sense of commonality – not simply recognition of the injustices imposed on blacks but a sense of shared oppression among blacks and whites – was rarely acknowledged in explicit terms. I don’t have enough time in this lecture to do anything more than suggestively sketch the underlying bases for this shared sense, the parallels with the social circumstances of blacks that whites came to sense in the aftermath of Second World War and the Great Depression that had immediately preceded it. The brief evidence I offer is literary but to my eyes quite revealing.
First, regarding the social condition of blacks as they saw themselves, consider the title of Ralph Ellison’s classic novel Invisible Man. This self-depiction of invisibility poignantly expressed blacks’ sense of exclusion, of living in America but not belonging here or anywhere else. Ellison published his novel in 1952 but the sense of isolation, of aloneness, to which he testified was deeply embedded in the Black experience from their original entry into this country, as captives torn from their homes and transported to an alien and enslaving land.
Ellison’s depiction was not new. But the new element in his portrayal was an underlying belief that a white audience now existed, an audience that was prepared to listen, even to extend understanding, to his plight. In 1952, Ellison sensed, as many black leaders sensed, that whites were prepared to see them clearly, as if for the first time since Emancipation. Ellison’s public complaint of “invisibility” was somehow belied by the very fact that he and other black leaders were ready to make a visible, public presentation of that complaint. And 1952, of course, was the year when Thurgood Marshall, on behalf of the NAACP Legal Defense Fund, argued Brown v. Board of Education before the United States Supreme Court.
What was the common chord of feeling with whites that emboldened blacks to go public with their complaints of wrongful oppression? Again I offer you suggestive literary evidence to support the proposition that, notwithstanding the considerable differences between the social experiences of whites and blacks, blacks’ fear of “invisibility” – of “not belonging” anywhere – was also felt by whites on their own behalf around 1952. This fear among whites was captured by the phrase “the lonely crowd,” the title of David Reisman’s 1950 study of American character, which became the best-selling sociological text in American publishing history. It was similarly expressed in William Whyte’s 1956 best-seller, The Organization Man – a portrait of the soulless conformity, a kind of personal inauthenticity and consequent “invisibility,” in American corporate life.
For most whites, this was a new fear. Their sense of “belonging” had been buttressed by the apparent dominance of the White Anglo-Saxon Protestant Establishment in this country. In fact, the WASP sense of their unassailable ownership of America had been eroded by successive waves of immigration into this country and almost entirely undone by the experience of the Great Depression. By 1952, the fragility of the reparative efforts toward restoring WASP hegemony was increasingly apparent. The claims of blacks for admission into “mainstream America” reflected, and at the same time appeased, many whites’ growing sense of the fragility of their own sense of belonging (as if blacks’ petition for admission in the previously all-white club demonstrated that the club still existed and was prized even more by those excluded than by their increasingly uneasy charter members).
The vocabulary to describe this fear for whites did not immediately translate into claims for justice and equality as it did for blacks. But by the mid-1960s, this sense of “loneliness” – of social isolation and disrespect, of belonging nowhere – became articulated as claims for justice and equality of other groups newly united in their sense of grievance. Thus came the campaigns, propelled by the example of the black civil rights movement, for the equal rights of women, of disabled people, of gays and lesbians.
In this proliferation of grievances by various groups, however justified in their own terms, something became lost from the underlying ethos of the original black civil rights movement.
The claims for inclusive equality became transmuted into mutually exclusive demands – as if including one group necessarily meant excluding some other, as if honoring the equality of one meant diminishing another. This combative premise came to characterize the polarized public debates over affirmative action quotas for blacks (at the expense of excluded whites), of women’s free choice for abortions (at the expense of fetal life), of marriage for same-sex couples (at the expense of traditionalists for whom marriage is inextricably tied to their own sense of gender identity).
Obama, however, signifies an effort to return the country to the original impetus of the black civil rights movement. He does not say this explicitly; he may not even clearly grasp this connection himself. But the sense of himself that he offers to the public takes us back to this root fear of loneliness, of exclusion, of not belonging anywhere. In his eloquently unpretentious book, Dreams from My Father, Obama testified to the persistent fear that had driven him for much of his life: “the constant, crippling fear,” he said, “that I didn’t belong somehow, that unless I dodged and hid and pretended to be something I wasn’t I would forever remain an outsider, with the rest of the world, black and white, always standing in judgment.” (p. 111). This fear, as he presents it, arose from his biographical experience that is not typical in American life, either for blacks or whites – that is, his mixed racial identity as the child of a black father and white mother, his father’s virtual absence from his life, his visual appearance as a black man simply because of his skin tone but his experience of being raised entirely by a white mother and white grandparents.
In Dreams from My Father, Obama describes the path that took him toward a self-definition as an African-American. He relates discussions with his black friends about their own color consciousness: “good hair, bad hair; thick lips or thin; if you’re light, you’re all right, if you’re black, get back.” But he observes that these conversations “rarely took place in large groups, and never in front of whites.” To admit our “doubts and confusions” to white people, he said, “seemed ludicrous, itself an expression of self-hatred – for there seemed no reason to expect that whites would look at our private struggles as a mirror into their own souls, rather than yet more evidence of black pathology.” (p. 193) But this is precisely what Obama offers in his book and in his candidacy: not that whites should ignore black experience and treat him as if he had no racial identity, but that whites and blacks alike should see his “private struggles” – as a mixed-race child who had not known his father – “as a mirror into their own souls.”
Obama’s electoral victory indicates that a substantial number of whites have responded to this offer. This response, I believe, was propelled by social forces at work in our society today that lay the ground for whites to see themselves in the mirror that Obama holds up for them, to identify with him rather than reject him as irredeemably different and threatening. For the past thirty years or so, we have been gripped by an ideology that takes our social isolation as a fact and tries to elevate it as a positive good – as rugged individualism – rather than as a vulnerability. I think we have come to an end-point in this celebratory myth-making – not, I emphasize, a permanent end but a moment of at least temporary exhaustion. The sudden collapse of our financial system and its imminent spread to our entire economic life is only the most visible expression of this exhaustion – though this current crisis gives vivid validation to the sense of vulnerability that has spread throughout our population with the vast expansion of economic inequality and the decline of economic opportunity.
Will we now self-consciously turn to one another for mutual support? Will a majority of the country follow Obama’s leadership to create a new identity with one another as this fatherless misfit appears to have forged a strong identity for himself? We will find a partial answer to this question in concrete programmatic terms during the next four years of Obama’s presidency: whether enough Americans are prepared to trust one another by pooling their resources through universal health insurance, through new investments in public facilities (infrastructure, educational institutions, and new sources of clean energy). The challenge in all of these policy matters is to overcome the ethos that has dominated our public life since the 1980s: that is, mutual mistrust and the consequent response of leaving everyone to fend for himself – a response which depicts government as “the enemy” rather than as the organized expression of our common culture, which encourages us to hoard personal assets for fear that they will be “redistributed” without any benefit to us rather than pooling our resources through taxation to accomplish common goals that we cannot reach on our own. Overcoming this intensely individualistic, mistrustful self-portrait means returning to the predominately shared sense of ourselves at the high point of the civil rights movement in the 1960s.
Will this possibility actually be fulfilled? Will this promise have more staying power than the relatively brief reign of the civil rights ethos in the 1960s? The answer is, of course, not yet clear. But I have seen a hopeful harbinger in the response of African-American students at Yale Law School to Obama’s election – of their readiness to see in his victory an offer of a supportive communal relationship that had not previously been available to them. Last spring, when Obama’s nomination for the presidency had been assured, I had long conversations with some African-American students about Obama’s impact on their lives and each described a sense of excitement, almost of disbelief, about the unexpected possibilities that Obama had opened for them. To an outside observer, their status as students at this elite law school might have seemed confirmation that they had joined the American “establishment.” But nagging doubts still accompanied this status for them. In common with all Yale Law students – regardless of race, gender or ethnicity – each of them suspected that there had been an administrative mistake and they would, sooner or later, be unmasked and their admission would be revoked. But beyond this typical misgiving, some further suspicion persisted that their race remained a special demerit, a specific reason that they were not fully accepted, not full-fledged members of the Yale community.
Obama’s success in obtaining the Democratic nomination in itself has already altered these students’ visions of themselves. Possibilities that had seemed remote for them suddenly seemed to be within their grasp – not so much for professional or economic success but for their sense of belonging at Yale specifically and in America more generally.
One student in particular told me about an experience with his father, a humanities professor at a mid-Western university. The two of them had been browsing in a clothing store and the father called his son’s attention to a white clerk who seemed to be following them while ignoring a white shopper in another part of the store. The father said, “She’s following us because she thinks we’re going to steal something.” My student told me that he had dismissed this thought, and after the clerk approached directly and asked if she could assist them, he said to his father, “You see, she only wanted to help us.” The father, however, repeated his insistence that the clerk was motivated by racial animosity. This disagreement between father and son was, my student told me, a recurrent theme in their relationship. But just after Obama won the Iowa primary (with overwhelming white support), his father called and told him that he didn’t recognize this country, that in the America where he had grown up it was inconceivable that a black man could be a major party nominee for president. My student said, “My father told me that it was my country now, not his, and that he was glad for that, and happy for me.”
In the America where I grew up, we started on this path toward a shared communal identity. The social turmoil of the late 1960s appeared to derail this effort. Barak Obama’s election as president may now signify that this long national estrangement was not permanent, that we are further on our way to the “more perfect Union” that our Constitution has always promised.