I recently spent a full week handling an out-of-town hearing before a judge. Having two school-aged children and a full life means it’s not that easy to just head out on a work trip for six days. But, I reassured myself, the kids are OK and my work is . . . worth it.
Here’s the rub. My client is challenging a permit associated with the construction of fossil fuel infrastructure. As soon as that permit was issued, the permittee was allowed to begin construction. Before we even got to the hearing, the permittee started and, indeed, largely finished constructing the project.
Regardless, our claims are still live, and the judge ruled that the permit challenge was not moot for a variety of reasons. This is not, however, an essay on legal mootness. This is instead an essay on the existential question of whether something is “worth it,” even when the damage has been done and even when it can’t be fixed.
In other fields of civil law, we accept that money is always a remedy. We know that it’s not justice or a magic eraser—in a negligence case, for example, it doesn’t undo the injury or take away the pain—but money damages are the universal remedy. We accept that money is a worthy enough remedy to seek, even though it can’t fix what was broken.
In environmental law, however, public interest groups are almost always trying to fix what is broken or prevent something from being broken in the first place. These actions are outside the realm of dollars and cents. We aren’t seeking money; we are seeking an outcome. We try to stop the dam, preserve the forest, or restore the stream. But what happens when the outcome we are trying to achieve is overtaken by events?
In my case, the project was built. Is it worth it to keep going? Is it worth it to spend our time on something that might not, practically, matter?
These questions become even more relevant in the context of a changing climate. We have colleagues spending years working to preserve forest parcels only to watch them go up in a haze of wildfire smoke overnight. There are others who have painstakingly worked to help their clients construct elaborate stormwater and flood mitigation projects only to watch them be overtopped by ever-more powerful storms. Why do we do what we do when a climate-change fueled hurricane can blow it apart in a moment? What keeps attorneys in the mission-driven aspects of our field going in the face of these challenges, even when we know that our work might be overtaken by events and might not, practically, matter?
I think we keep going because of a fundamental belief that it is always worth it. The project was built, but maybe the case will set precedent that will help us on the next project. The forest burned down, but maybe it would have been worse had it not been protected from development at all. The floodwaters came, but maybe we learned how to build back in a better or different way. Environmentalists are often portrayed as doom-and-gloom naysayers, but if that were really true, we wouldn’t do this work at all. Instead, I think we base our work on a deep well of optimism and hope.
Our clients, particularly our mission-driven clients and government agencies, can’t afford to throw away their limited resources on programs or lawsuits that don’t matter. But we also can’t throw up our hands so hopelessly that we don’t bring the challenge, don’t protect the forest, or don’t build the best flood management projects we can. Even in the face of a changing climate, we persevere and rely on the hope that, in the end, it is always worth it.
