May/June 2004
Peter Shelley, Esq.                                            
Interviewed in Rockland, Maine on March 11, 2004.
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The Conservation Law Foundation: Tackling Environmental Issues
in New England
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Q:  What is your educational background?

A:  I received a bachelor’s degree in economics from Hobart College in New York State in 1969 and a law degree from Suffolk University in Boston with honors in 1978, in the evening division night school – the hard way.

Q:  Why did you enter the legal profession?

A:  My wife and I had a child very early in our marriage and it coincided with a recession in the Boston area, where we were living. I ended up working at a bank, which was mind- numbingly dull for me. The husband of one of the tellers was going to night law school. I started to talk to him and decided I should give it a shot. I took the test (LSAT). I did well in the test and then I applied to Suffolk’s evening program because I needed the income from the day job. I got in. I guess you could say that I stumbled into law rather than having it as a really clear career objective.

Once I got to Suffolk, it was very clear to me that I enjoyed the challenges of law and that I was good at it. Moreover, it became increasingly apparent to me during law school that a law education was a good foundation for a career of making positive change in the world around me, a goal that aligned nicely with the political interests that were kindled in me during the 1960’s.

Halfway through my four years of night school, I started to work at the Conservation Law Foundation (CLF), where I work now. My first case was the first case CLF took to the U.S. Supreme Court involving a battle against the oil and gas industry and the federal government and I was hooked.

Q:  You did that while you were going to law school?

A:  I did the legal work at CLF during the day. There were only two lawyers at the organization at the time and I worked on all the briefs. There were probably twenty oil company attorneys and the U.S. Justice Department on the other side trying to fight off an injunction. It was a real David versus Goliath situation and we were winning at every turn.  It was a very exciting and very heady experience for a third year law student.

Q:  Do you want to talk more about that case and what it involved?

A:  Sure. It was the first successful case that was brought in the country to block oil and gas drilling on the Outer Continental Shelf. There was a proposal to drill on Georges Bank, which is about a hundred forty miles east of Boston and forms the eastern boundary of the Gulf of Maine. At that point there were believed to be some oil reserves and gas reserves on Georges Bank and it was proposed to be opened for leasing.

The principal basis for our opposition to the lease sale was protecting the enormous biological value of Georges Bank for New England’s fisheries, for producing fish. We argued that when balancing the public interest in terms of what activities should happen on Georges Bank, the economic value of a sustainable ongoing fishery on Georges Bank was much more substantial than the value of a relatively small reserve of oil and gas supplies that would be used and exhausted. Moreover, the drilling of that hydrocarbon resource could put this sustainable, renewable resource at risk.  From our perspective the risk was not worth it. The trial judge agreed with us and blocked the sale. The First Circuit agreed with us and upheld the injunction on appeal.

This was a major crisis for the federal drilling program. Everyone was in Boston with large certified checks for this leasehold bidding event which had just been stopped. Apparently, the government’s decision on whether to overturn the First Circuit’s action turned on whether or not Justice Brennan, who was the supervising justice for the First Circuit, was healthy enough to hear the appeal. The government was going to appeal the First Circuit’s action if another Justice was going to hear it. Word came back to us when we were getting on the plane to Washington at Logan airport that Justice Brennan was in his chambers ready to hear any motions and argument on the matter, and the government backed down.

That was my first experience in the law.

Q:  Why did you get involved with environmental law?

A:  I grew up on a farm and have always had a strong personal interest in the outdoors and the environment. It was some serendipity getting hooked up with CLF during night school and experiencing this really nice fit between my personal interests, my new interest in using the law to make change, and CLF’s mission. It just felt right to me and gave meaning to the career I was entering.

When I graduated from law school, I worked as an assistant attorney general in Pennsylvania for five years in order to get more trial experience. I then came back to Boston at the request of the head of the CLF, Doug Foy, to head up the Boston Harbor pollution litigation for the organization. I have been at CLF ever since.

Q:  What do you do now?

A:  My job description is changing. For the last seven years I have been the director of the CLF Advocacy Center in Maine, which is located in Rockland, Maine. I have been supervising the attorneys in this office as well as doing a number of cases myself involving fisheries management and public trust doctrine in the oceans. I have also been heading up a project to support local groups who are interested in restoring salt marshes or coastal eco-systems that have been degraded. Plus I do the development work of keeping a nonprofit organization alive, keeping the doors open and the lights on.

A new president was appointed for CLF in November 2003. He has asked me to come back to Boston. I will be relocating to the Boston office and be the director there as well as litigation supervisor across the organization.

Q:  Will you explain what the Conservation Law Foundation is and a little bit about its beginnings?

A: We are a 501(c) (3) nonprofit membership organization. We have approximately five thousand members who are principally from the New England area. Our focus is exclusively on the New England region, although some of our projects do include the Atlantic Maritime Provinces, New Brunswick and Nova Scotia. We are a regional advocacy group with an emphasis on using legal strategies to solve problems in New England.  That’s what we were organized to be at our beginning in 1966 and we’ve resisted efforts to go national or to have a different focus.

Our mission statement talks about solving problems. We try to use law, science, and economics to get at some of the persistent environmental and conservation problems in the region. I suppose we are best known for bringing law suits, typically against governmental entities, challenging the ways they’re implementing the laws they’re given to administer. Sometimes we bring cases against corporations; but generally our litigation tends to be focused at the government, where we can get the most leverage from the legal work we do.

We also do a fair amount of administrative work with regulatory agencies on rules that they are developing and we challenge rules we think are inconsistent with the legislative intent of a statute. In some cases we draft rules or legislation we think are better suited to resolving particular issues than the existing regulatory framework.

We have and use non-legal resources as well to advance our mission. We have a Ph.D. marine biologist and we have a Ph.D. resources economist. Part of our philosophy is that many of the environmental problems we are experiencing arise as a result of structural flaws in the programs that companies and the economy operate under. We use a multidisciplinary team to understand and get at those flaws. We focus on changing the rules to either create new incentives for better behavior or create stronger disincentives for behavior that degrades the environment and reduces the potential for the environment to provide goods and services in the future.

With our roots dating back to 1966, we believe that we are the oldest environmental law nonprofit in the country.

Q:  Environmental law really wasn’t a field of law back then.

A:  No, there weren’t really any environmental courses when I went to school. But that’s o.k. because after having worked in this field for twenty years I find that we make more law than we follow and good precedent is often hard to find. We’re always a little bit ahead of what they are teaching.

CLF was formed by a group of lawyers who felt that the law had something to contribute to solving environmental issues that the country and the region were facing. Up until about 1975, the organization focused mostly on land protection, trying to write and promote local tax codes that would provide incentives for people to conserve their land. We were really more of a legal consulting and policy think tank group until about 1977, which was when I started working. Coincidentally, a new president took the helm of CLF at that time, Doug Foy, who came from a trial law background. He brought an edge to the organization’s reputation – feisty, hard-nosed, and willing to take on hard cases and go toe to toe with people who are not doing well by the environment.

We get financial support from our membership and from foundation sources. Our current budget is about four and one half million dollars regionally. We have offices in all the New England states except Connecticut: in Providence, Rhode Island; Boston, Massachusetts; Rockland, Maine; Concord, New Hampshire; and Montpelier, Vermont. The smallest office is Providence, which has a single lawyer. Most of the other offices have two or three lawyers. It’s not inexpensive.  We get a bit more than half of our funding from foundations that support particular projects we want to do and half from our membership.

Q:  How does CLF determine what problems to tackle, what bad guys to go after?

A:  I’d like to say that we have a scientific process for doing that. But we don’t. The information is not good enough to allow us to do that in any objective way. We make our decisions about cases in a couple of ways. We get lots of calls from people with problems, people who want to bring us into their case to fight their battles. Some of our best cases have come from those sources. We read the papers and literature. The collective wisdom of the organization’s staff now represents literally hundreds of years of environmental, legal, and policy experience. We have a pretty good sense of what’s important and what’s not important.

We’re organized into program areas that reflect our sense of some of the region’s areas of priority concerns. We have an oceans program. It’s hard to imagine being a conservation group in New England and not dealing with the ocean. That’s a big focus for us. We have a clean energy and climate change program that focuses on climate change and public health issues from hydrocarbon emissions.

We have a natural resources program that works on river, forestry, and wild lands issues, including work on some of the public forest management issues in Vermont and New Hampshire. We have a smart growth program that is working to educate people about the links between development and population pressure in the region and the ecological and quality of life declines that people see almost day to day . . . the traffic, the congestion, the loss of the New England town character.

From time to time we’ve also had an environmental health program. That’s an emerging area of interest again for us. We did work that received national recognition around fighting childhood lead poisoning in urban centers, an important part of the human environment in this region. Kids were getting poisoned by the lead exposures and no one was working on it.

Sometimes we do “little” cases where people are trying to protect their backyards and to hold on to the quality of their life. Cases that don’t necessarily fit into a regional program area that are a priority at the state level can be brought by the state offices. They have some flexibility to help people that way. We have done a number of cases that involve permitting decisions around subdivisions at the municipal level. Those smaller projects are very satisfying because people are so appreciative of having access to legal resources. They often don’t have voices in the regulatory and judicial settings. They can’t afford a lawyer and usually are facing a battery of lawyers and consultants on the other side. Many of these situations are dismissed as “NIMBY” cases but I have never seen anything wrong or improper about people trying to defend their interests in their homes and existing communities. We have to be careful not to do too many of those cases, however, because it does take away from our capacity to do the regional work.

Q: What are some of the major lawsuits you have brought in the past?

A:  The first one I was involved with as a student was the oil and gas case. That was successful. After I left, during the five years I was away, there were four or five other attempts to lease Georges Bank. Two exploratory oil wells were allowed to be drilled but they were unproductive and fizzled out. Today there is still no oil or gas production on Georges Bank to jeopardize the fish, and the moratorium against drilling imposed by Congress is still in place. It’s very satisfying.

When I came back to CLF in 1983, I was involved in a number of large municipal pollution cases. I was attorney for the organization on the Boston Harbor clean-up case. There was about a four billion dollar civil works project, although we didn’t know the system was in as bad shape as it turned out to be when we filed the action. We just knew that the harbor was being used as a sewer. That was a huge case and still is ongoing. Twenty years later, we’re still fighting with the sewer authorities, as we speak, over whether they should be allowed to continue to pollute the beaches in Boston.  Boston Harbor has been a twenty-year fight for the organization.

We did a series of similar pollution cases in New Bedford, Fall River, a five-community sewer system on the north shore of Boston, and Portland. All of those were successful. It’s fair to say that six or seven hundred thousand gallons a day of what was once extremely polluting sewage is at least now in compliance with the federal clean water act every day in the region because of that work.

Some of these cases I worked on people have totally forgotten about, but they were very big at the time. When James Watt became Secretary of the Interior, he developed a program euphemistically called “asset management.” The concept was to privatize huge numbers of federal operations, such as parks, concessions, and lighthouses. Everything was available for bid. That was a huge national initiative that CLF fought it until it died of its own stupidity. We were the only group in the country that took the Reagan administration on and we stopped it.

I brought another fairly big lawsuit during the Reagan era. There was a proposal to invest some thirty million dollars in upgrading, expanding, and enlarging the mission of the military facility on Cape Cod, known as Camp Edwards and Otis Air Force Base. This facility covers about twenty percent of the whole Cape geography and is situated right on top of the highest spot of the Cape’s ground water supply. So, any pollution or contamination associated with the military activity would spread out from this area into the surrounding communities. And, that was the only supply of water that these communities had. The further problem was that the military, ever since World War Two, had been actively polluting the land.

They were doing moronic things like dumping hundreds of thousands of gallons of aviation fuel out into the sand to test tanks in some of the air tankers. They weren’t even catching the fuel. They were just discharging it onto the sand and it was going into the ground water, so that the ground water underneath this facility when we became involved was already highly contaminated.

The lawsuit I brought was based on a “clean it up first” principle. If the Pentagon wanted to be a good neighbor and wanted to expand activities at the bases, then they should first clean up the mess that was affecting the surrounding communities and then people could talk about what’s appropriate in the future. Our litigation killed that program. The military facility is still on the Cape, but it has been downsized considerably. The agencies also came to their senses. We worked with them to make the kind of safety improvements they needed at the facility for current operations and we forced them to do the cleanup, which they’ve done a pretty good job at.

Another significant case that I’ve been heavily involved in and still am involved with involves fisheries management. CLF had always had a very close relationship with a number of fishermen, principally from Gloucester, around the oil and gas lawsuits in the 1970’s and 1980’s. Some of the boats going out of Gloucester to Georges Bank were concerned that there would be a blowout with the drilling that would damage the fishery they were dependant on. I worked very closely with them. They weren’t our clients, but they did join us in the legal work that we did back then

In the late 1980’s we started to get a lot of calls from fishermen. The callers were telling us that if we really cared about the fish on Georges Bank, we should take a look at what was happening at the federal management council for fishing, which makes regional plans and sets the levels of how much fish is allowed to be taken by the regional fleet.

Q:  Can you explain what the management council is?

A:  There are nine regional management councils created under the federal Magnuson-Stevens Fishery Conservation and Management Act, which is the organic act that regulates all fisheries in the United States. It was passed in 1976. Its purpose really was to develop a framework of sustainable fisheries - to protect fisheries that were still healthy, as well as recover some of the fisheries that had been overfished by foreign fleets. Each of the nine regional councils around the country comes up with management plans for the fisheries under its jurisdiction. The National Marine Fisheries Service, under the Department of Commerce, approves those plans and turns them into regulations and they then become the law.

The Act for the first time reached out to two hundred miles in terms of federal jurisdiction over the adjacent open seas. It extended our economic and regulatory jurisdiction for fisheries out to two hundred miles. The problem was that right after we kicked all the foreign boats out of that two hundred mile zone, the federal government in its wisdom re-financed the fleet and rebuilt our own domestic fleet so that within four or five years we were fishing just as heavily on the fish out there as it had once been fished by the international fleet.

It became apparent to us very quickly that the federal fisheries program was broken. The law was treated as a joke, guidance at best, and ignored for the most part. The New England council probably was one of the worst in the country in terms of actually meeting the requirements of the law. Our motto is: Defending the Law of the Land. Whenever a law that is important to an issue we care about is treated in such a cavalier and irresponsible manner, it’s like waving a red flag in front of our noses. And that was the case here. Unfortunately, as a result of enforcing the law we knew we were going to have to confront our friends, the fishermen, who were fully invested in harvesting as many fish as they could even if the overall fishery was collapsing. Moreover, in many respects they were innocent victims of this institutional failure. They were just following the plans that this council was developing and that the federal agency was approving.

Q:  What was the New England council doing wrong?

A:  Periodically, the scientists would assess the fish populations and tell the council, “You shouldn’t kill any more than X metric tons of cod fish next year.” The council would seem to say, “That is interesting information.” It would then go out and create a plan that would allow fishermen to kill five or six times that many fish. No management was occurring.

One of the important parables I have incorporated into all of my thinking is called the tragedy of the commons, which talks about what happens to a publicly-owned valuable resource in the absence of effective management. What happens is the resource gets plundered and wasted, inevitably.

The tragedy of the commons model was created in 1968 by a biologist by the name of Garrett Harding. The interesting thing that he points out is that the resource gets plundered, not by evil people or people who are bad-spirited or wearing black hats. In the absence of good management, people pursuing their own rational best interests act in a way that ultimately causes their own failure. Each person’s narrow self interest doesn’t take into account the cumulative effect of everybody else’s separate actions. The almost automatic effect of poor management is total destruction of the commons. That was what was happening in New England’s fabled fisheries.

We brought the first law suit in the country that actually had the temerity to suggest that the federal statute actually had a conservation objective to it. Interestingly, it was never litigated. The federal government agreed with us but evidently lacked the political will to enforce its own law because Congress kept hammering the agency any time they tried to put reasonable and necessary controls on the fishermen.

The federal government and CLF entered into a consent decree that forced the first successful groundfish management plan into effect in 1995. Although there is still a long way to go, virtually all the stocks, the numbers of fish out there, have stabilized and some of the populations of fish on Georges Bank have almost been fully rebuilt. I think this case is an example of an ideal intervention we try to produce.

In large part as a result of the publicity that developed from this New England situation, the federal law was changed in 1996 to memorialize the policy that came out of our case, with very strict parameters around overfishing. The discretion of the National Fisheries Service to allow overfishing was curtailed and managers were given strict time limits that mandated the rebuilding of any overfished population of fish. Overfishing itself was strictly prohibited. Congress made black and white some of the gray areas of the law in ways that should promote the achieving of sustainable fisheries around the country.

We reinforced the legitimacy of our conservation goal by estimating the value of a fully rebuilt groundfish population. By our calculations, there was a potential three to four hundred million dollar revenue stream to the fishing boats annually from managing that resource better. Sustainable fisheries would provide ecological benefits, but they would also provide very real economic benefits for the region. Achieving this objective was something we felt we needed to push for despite the clear short-term economic consequences that the fishermen have been burdened with.

Q:  This is an ongoing thing, isn’t it?

A:  It is. We’re starting to see the light at the end of the fishery tunnel, however, which is encouraging.

Q:  The fishermen were up in arms?

A:  Routinely.  The regulatory screws have slowly been tightening on fishermen ever since 1994. People have different philosophies of whether you should implement change all at once or spread out the pain slowly until you get to where you need to go. The managers have been following the latter approach. Every year or two there have been more provisions that have had to have been put in place.

When the law was changed in 1996, to our astonishment, the Council virtually ignored all of its requirements. We brought another federal lawsuit in Washington, this time with three other environmental groups as co-plaintiffs. District Judge Gladys Kessler ruled four-square in favor of all of our claims and the fisheries are under her remedial order at this time. There is a deadline coming up and the plan the council has come up with still has some legally deficient provisions.

Q: Is it causing many fishermen to be out of work?

A:  Yes. There is some economic loss associated with it. If you look at the economic history of New England, however, the greatest number of job losses happened before we even got involved because of the poor management and declining numbers of fish. Those job declines prior to 1994 dwarf the economically negative impact of this transition period as a result of our lawsuits. Rebuilt fisheries, moreover, should allow the employment numbers to expand again.

There are a lot of hard issues around who gets to participate in that rebuilt fishery. Do the hard core fishermen who made it through the rebuilding period, many of whom were part of the overfishing problem in the first place, get to reap all the benefits of the rebuilt fisheries?  Do others? For example, Stonington, Maine is now completely out of ground fishing, although historically it always had some ground fishermen in its port.  In my opinion, Stonington should have a right to participate in that fishery in the future.  Designing the rules for future use is going to be very complicated and controversial because a lot of money is at stake.

Q:  It is confusing to me to understand who has power to do what, who is responsible for what.

A:  In the fishery statute that framework is pretty clear. The federal agency, the National Marine Fishery Service, has the ultimate responsibility for making sure that all fisheries in the United States are in compliance with the requirements of the federal law. There are three basic requirements: that we are not killing more fish than are being reproduced; that bycatch, that is, catching species that you don’t want to or shouldn’t catch and that you don’t bring to market, is minimized; and that the fish habitat is protected. The management plans are supposed to minimize the impact on the ocean bottom from fishing gear, which is very heavy and very destructive to many types of marine life on the bottom. Management plans are also supposed to be socially and economically fair in terms of how the people in the fishery are regulated.

The National Marine Fishery Service is, at the end of the day, accountable to the American people to what happens to the fisheries. Because it is practically impossible to figure out all the different nuances and local approaches to fisheries around the country, the regional council system is responsible for taking a first stab at developing management plans and implementing measures that meet all those requirements. Then the federal government approves or disapproves.

The councils are made up primarily of fishermen and government fishery officials. It is a very closed system. The councils are given authority over the different species in the federal two hundred mile zone offshore. Species in the state waters, out to three miles, are regulated by the states. In Maine, for example, there is the federal plan for people who fish for lobster in federal waters and a state plan for people who fish for lobster within the state waters.

Because some fish swim along the coast from state to state and are highly mobile along the coastline of states, Congress created the Atlantic States Marine Fish Commission, which comes up with management plans for species of fish that go across state borders, such as lobsters. Appointees from the states get together and come up with a coordinated, integrated management approach to these fish.

Local governments don’t do much at all.

Q:  What if the states and the feds have disagreements?

A:  It depends on the issue. If the issue falls under federal jurisdiction, the feds have preemptive authority. There are a lot of jurisdictions overlapping at sea, but it actually does make sense in practice.

There are two additional criticisms of the current system beyond those I have already mentioned. The first is that we are talking about the management of a public resource; the fish really belong to the public. They don’t belong to the fishermen. They don’t belong to the fish commissioners. The management structure at these councils, however, doesn’t generally involve the public. It doesn’t involve the people who buy and eat fish. It doesn’t involve conservationists. The council system has been criticized as being a bunch of foxes in the hen house.

The other issue is that, even at the regional level, there is a huge area to manage.  The New England council, for example, has jurisdiction over a lot of fish from North Carolina up to the Canadian border. It’s very difficult for the regulated community, the fishermen, and the public to participate in the management process and have their voice heard. For example, it is almost impossible for people in Eastport, Maine, who fish, to get to a meeting in Newport, Rhode Island, or even Boston. We have been encouraging the formation of sub-regions for management purposes.

Q:  You are an advocate for marine protected areas. Can you explain what they are and why you advocate for them?

A:  There are all sorts of control programs that are swept up under the caption “marine protected areas.” Essentially it’s an area of the ocean that has some use restrictions on it to protect it for a particular purpose. There are areas that are temporarily closed to fishing. There are other areas that are closed to sand and gravel mining. Other areas are protected for other purposes. The type of marine protected areas we’re looking for and think are necessary in the Gulf of Maine we’re calling marine reserves. These would be areas where all human activity, including fishing, would be predominantly prohibited or at least highly controlled.

There are several reasons for creating these reserves. First, and in some ways most important, in order to understand what the Gulf of Maine was like when it was healthy --    what kind of production and what diversity of species should be present in the system -- we need to have some control sites where there isn’t human disturbance. Right now all the most biologically reproductive areas are disturbed many times a year by fishing gear and other activities. We really can’t tell what the background conditions are.

The second reason is that we want to preserve the natural biota and biodiversity in the system for its own benefit, for the same reasons we have wilderness areas on land. We think the ocean should have wilderness areas also. The entire ocean should not be thought of in terms of economic development and as an inventory for people getting rich. Some parts of the ocean should be set aside for their ecological value and protected.

In a survey that was recently conducted, people imagined that somewhere between twenty and twenty-five per cent of the ocean was already fully protected from human activity. That’s wildly misinformed. It is well less than one per cent worldwide. In the Gulf of Maine, there are no areas that are permanently protected from fishing activity. To create an ecosystem-based approach to managing the resource, we think a network of reserves needs to be identified and permanently set aside in an undisturbed condition.

Q:  Do you think that is an achievable goal?

A:  I don’t know. It is hard to tell. It’s a new idea even in the marine scientific community. There will be a lot of resistance to it from fishermen because they are used to thinking of the ocean as theirs to do with as they want.

Q:  Or, that it is so huge that it doesn’t matter.

A:  Or, it is so huge that you can’t harm it. However, that myth has been pretty much destroyed in New England. Even the fishermen now have a new appreciation of the limits on production.

Q:  Are the clean-up and preservation efforts by CLF and others keeping up with or overcoming the damage to the environment?

A:  There are no metrics that would allow us to know. Some mornings I get up and I think we’re not even making a dent. Other mornings I get up and think, “You know what? I think this is the right direction, we’re making progress, and all we have to do is keep at it.”

I think with respect to the really acute pollution that was present in a lot of the rivers, dumping in the ocean, and a lot of the coastal discharges, we’ve made tremendous progress. There are still a lot of chemicals that are in the environment and being deposited from the atmosphere at very low levels but very high volumes from treatment plants and industrial discharges. Storm water and so-called non-point pollution are the next challenge on the pollution front but there is some progress even there.

There is still a challenge ahead of us in terms of producing sustainable fisheries. We are headed in the right direction. We have several fisheries now that are considered to be fully rebuilt and healthy, such as Georges Bank haddock and the scallop fisheries, as well as lobster. I expect that the other fish will join those ranks but it is going to take some time. I think we’re making progress.

The final piece, recognizing the role that these bottom marine habitats play in the productivity of the system and trying to protect them, is probably going to be the hardest challenge and take the longest. We just launched that discussion.

Q:  You just touched the surface?

A:  Yes. Literally.

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