Suing Government and Business Is a Potent Way to Curb Climate Change. Why Are Donors So Afraid of It?
A few years ago, the organization I lead — Los Angeles Waterkeeper — applied for a foundation grant to support an initiative we call Creeks to Coast. The program provides high-school students, particularly historically underserved youth, with hands-on and classroom opportunities to learn about local waterways and how they affect community health. It aligned closely with one of the foundation’s stated funding priority areas and otherwise met the criteria for the grant.
So, it was a surprise and a real eye-opener when we received a denial letter from the foundation. The letter included one telling line: “During the course of our review, it was determined that the level of advocacy and litigation undertaken by your organization exceeds this Foundation’s funding interests.”
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A few years ago, the organization I lead — Los Angeles Waterkeeper — applied for a foundation grant to support an effort we call Creeks to Coast. The program provides high-school students, particularly those often left out of enrichment programs, with hands-on and classroom opportunities to learn about local waterways and how they affect community health. The project lined up well with one of the foundation’s stated funding priority areas and otherwise met the criteria for the grant.
So, it was a surprise and a real eye-opener when we received a denial letter from the foundation. The letter included one telling line: “During the course of our review, it was determined that the level of advocacy and litigation undertaken by your organization exceeds this foundation’s funding interests.”
As the leader of a nonprofit with a strong track record of taking successful legal actions to address environmental injustice, it seemed that one of our key strengths was instead considered a liability.
If this were an isolated incident, I would have shrugged it off and moved on to the next funding opportunity. But in my experience, it fits a pattern: Many grant makers are dedicated to protecting the environment, but have a limited understanding of how to reach that goal. Specifically, they hesitate to embrace one of the most powerful tools available for fighting climate change and environmental injustice — asking courts to take action.
That’s a shame because going to court is a highly cost-effective way to secure lasting environmental progress. The Clean Water Act, enacted 50 years ago last fall, is one of the nation’s most consequential environmental laws because it not only sets standards for clean water but also empowers citizens to bring lawsuits to enforce those standards. The law unleashed a legion of “private attorneys general” who are the real source of its ongoing power and influence.
Proof Lawsuits Work
Many foundations see lawsuits as risky and expensive. But particularly when considering funding well-established organizations with a track record of legal victories, grant makers should recognize the transformative role the courts play in creating a healthier planet and more resilient future. Examples abound, but for proof, donors might want to take a close look at the role of legal action in transforming the Los Angeles sewage system from one of the worst to one of the best in the western United States.
In the 1990s, the Los Angeles wastewater system was an antiquated mess. Sewage spills were an almost daily occurrence — contaminating waterways, leaking into private homes, and bubbling up on city streets. The Los Angeles Sanitation and Environment department, which at the time managed approximately 450 million gallons of wastewater each day, was a major source of these problems.
In 1998, my organization filed a lawsuit under the Clean Water Act against the city, triggering five years of legal battles that ultimately led to the department admitting responsibility for 3,670 sewage spills. As part of the settlement, the agency committed to spending billions on infrastructure and restoring damaged wetlands and waterways, leading to a 90 percent reduction in spills since 2000. Simply by funding a small team of public-interest lawyers, donors spurred a multibillion-dollar infrastructure investment that pays dividends to this day.
Lawsuits can also lay the groundwork for political support of climate efforts. In 2008, the Natural Resources Defense Council and Los Angeles Waterkeeper sued Los Angeles County for allowing ongoing urban runoff pollution to contaminate the Los Angeles and San Gabriel Rivers. In 2015, the court found the county responsible for hundreds of violations. To settle the case, it agreed to pay $2.8 million toward green street infrastructure in the low-income Watts neighborhood and $1.2 million to support residential retrofits such as rain gardens to capture and filter runoff, funneling funds directly to homeowners in the hardest hit communities.
Most significantly, the legal settlement resulted in a 2018 ballot initiative, known as Measure W, to address the runoff problem in a comprehensive way. Part of the county’s motivation was to avoid a stream of lawsuits. Measure W passed with 70 percent of the vote and established the transformational Safe Clean Water Program, which funds nearly $280 million annually in perpetuity for clean-water investments. Even county officials credit the lawsuit as the spark that led to this massive, ongoing investment. The cost of the original lawsuit against Los Angeles County pales in comparison to the benefits it has brought: billions of dollars spent protecting the environment.
Lawsuits are an especially effective way to bring political influence to communities that have very little, particularly communities of color that are disproportionately harmed by air and groundwater pollution from fossil-fuel power plants.
For example, lawyers for the group Earthjustice have successfully fought to close more than 200 such plants and are engaged in ongoing litigation to regulate coal-ash disposal to reduce groundwater contamination. Litigation brought by the Center for Biological Diversity’s Climate Law Institute has led to bans on fracking in numerous communities in California and continuing work toward a statewide ban. And lawsuits led by the Natural Resources Defense Council, the ACLU, and others have ensured that residents in Flint, Mich., Newark, N.J., and Pittsburgh have access to clean drinking water.
Lasting and Cost-Effective Impact
Supporting legal action is more likely to generate lasting effects than almost any other work, whether a donor is interested in improving air quality, securing drought-proof or lead-free water supplies, or protecting native species and natural areas. The best way to support marginalized communities and ensure a climate-resilient future on all these fronts is to push government agencies toward action. And the best way to spur government action is to sue.
The recent 50th anniversary of the passage of the Clean Water Act is a reminder of a long-gone era when ambitious environmental laws could pass with bipartisan support. Unfortunately, it’s hard to imagine Congress passing such laws today. So, if grant makers really want to make lasting progress on the climate, investing in groups that aren’t afraid of litigation is the best way to get the job done.
Whether a philanthropist wants to invest close to home with a community group working to protect a local parcel of open space or on the national scale to hold fossil-fuel companies accountable, the message is simple: Embrace, don’t fear, legal action.