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THE CHALLENGE OF TRANSITION: THE ENVIRONMENT AND NATURAL RESOURCES

Tom Jorling, a distinguished attorney who was the co-drafter of the Clean Air and Clean Water Act, gives his thoughts as to the environmental challenges facing President Biden. Mr. Jorling has extensive experience working with environmental challenges. He was the original deputy director of the environmental agency that served under three presidents, he headed New York State’s Department of Environmental Conservation under Governor Mario Cuomo, the Director of the Center for Environmental Studies at Williams College for 17 years and was Vice President of Environmental Affairs for International Paper for ten years. Mr. Jorling gives his insight in the following essay about the challenges of transition.

Even in the best of circumstances (the outgoing and incoming Administrations represent the same party and political philosophy) the transfer of authority from one Administration to another is fraught with challenges. When, as this upcoming transition is from one ideologically oriented Administration to another with a very different orientation, it represents among the most difficult challenges facing incoming leadership. While these challenges face all departments and agencies, they are particularly severe in environmental regulatory agencies (EPA, Energy) and natural resources and public land managing departments (Interior, Agriculture). The challenges fall into four categories: FIRST, Personnel; SECOND, Policy; THIRD, Reversing objectionable done deeds and intercepting those in process; and FOURTH, opportunities and initiatives.

PERSONNEL

New politically appointed leadership coming into an agency or department often makes mistakes on both sides of the personnel coin usually leading to delays at best and at worst poisoned relationships. On one side of the coin incoming leadership often assumes that civil servants, because they worked for an Administration carrying out policies they opposed, are not to be trusted and considered sympathetic to the outgoing Administration. This can be a terrible mistake. Civil servants know the law that they have sworn to uphold and with leadership that directs the implementation of those laws and they will do it professionally and responsibly. If new leadership assumes or acts as if civil servants are the problem they will find it difficult to achieve anything, much less the initiatives they come in idealistically seeking to pursue. Implementing statutory authority is difficult and consuming work and incoming appointed leadership needs to understand it is the civil servants that do that work and if they are distrusted or marginalized the work cannot get done.

The other side of the personnel coin is the question of the morale and attitude of the civil servants— the bureaucracy if you will— that incoming appointed leadership inherits. The attitude and orientation of the incoming leadership perceived by the civil servants will determine how successful the new leadership will be in carrying out its policies and objectives. If that attitude is perceived to be one of arrogance and know -it -all, the morale of civil servants will be deeply eroded and the new leadership will find that very little can get done, certainly on a timetable that typically new leadership comes in expecting to achieve. Asking the civil servants how to get things done is a sure way to gain the allegiance of the work force.

POLICY

It is understandable, if misguided, that newly appointed agency and departmental leadership enters office with the idea that simply commanding change produces change. Our system is not built that way. There are substantial procedural and substantive guardrails that must be adhered to in order to produce durable and lasting change. Appointed leadership must commit to the hard and intense work, and it will require the full-time commitment of those who occupy appointed leadership positions. They must also overcome and resist the attractions of the perks of position, especially the seduction of travel, speechmaking and the attention of lobbyists, the media and other politicians. Making change or advances in translating statutory authority into actual policy and regulatory implementation is hard, demanding work. Unless appointed leadership engages in that hard work and inspires the civil servants doing the actual crafting of products, time will pass, results will be few and disappointment will set in. The once new appointed leadership will wonder where the time went with little or no initiatives for change produced. Successful appointed leadership establishes a manageable checklist of accomplishments he or she seeks to achieve and requires engagement and accountability from, and participation with, staff on at least a weekly basis to measure progress.

REVERSING DONE DEEDS AND INTERCEPTING THOSE IN PROGRESS

The most obvious targets for change by the incoming appointed leadership of a new Administration are issues that received attention during the Presidential campaign. Some of these issues had reached the point of promulgation— that is the status of law— others were moving far along in the process of becoming law or operational policy. For instance, in this transition focus has been on climate change regulations or repeals or rollbacks of regulations or policies by the previous Administration – for example, the previous Administration’s efforts to reverse the California mobile source emission program adopted by a multitude of other states under the Clean Air Act. Complicating efforts to make changes in these areas is the fact that many of them are now pending in the judicial arena. This then will require close coordination with the Department of Justice and the States in order to make the desired change, change that will be durable and consequential.

Further complicating these efforts, it is necessary to understand where in the process these issues reside and how to address them as often, the outgoing leadership will have attempted to lock in their changes or at least make change difficult for the new Administration. This again takes hard work and leadership of the civil servants to address the changes in a manner that will survive the inevitable scrutiny of judicial review. Just simply declaring it should be done will not result in it getting done.

OPPORTUNITIES AND INITIATIVES

One of the traps that new appointed leadership succumb to is to fail to balance and achieve the dual ends of changing existing or in process regulation and policy pursued by the previous Administration with the objective of pursuing new initiatives sought to be advanced by the new Administration. This requires very skilled leadership by appointed officials as they will quickly learn that there is inertia and momentum in bureaucratic processes. Sending conflicting signals and messages to civil servants who are already overtaxed will produce gridlock in the system and neither set of objectives will be achieved. New appointed leadership must respect the requirements of producing successful policy and regulatory change and be sensitive to the burdens and workloads carried by the civil servants. The new leadership must respect the knowledge and experience of the civil servants who have had etched into their DNA what it takes to get regulations promulgated that will survive the scrutiny of the courts.

This new Administration will certainly want to address climate change. EPA and the Energy Department are the vehicles that offer the most promise. EPA through regulatory action, the Energy Department through the National Laboratories, and the Department’s tremendous financial leverage offer the most promise. The key to success is to do it right. The objective must be to adopt programs and regulations that will withstand the challenges that will be surely be bought by, among others, affected parties. If the new appointed leaders take seriously their work, and engage the civil servants, they will succeed. Rhetoric alone will not produce achievement. Only dedicated, engaged, respectful leadership of the bureaucracy will produce results.

Murphy, Hesse, Toomey & Lehane, LLP Partner Presents Discriminatory Harassment Prevention Training for Managers

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