Ode to Angus: The Macbeth Report

Posted on January 17, 2019 by Scott Fulton

In the Summer of 2017, ELI undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI and ACOEL communities and in cooperation with the Environmental Council of States (ECOS). Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI. As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting report, The MacBeth Report: Cooperative Federalism in the Modern Era, is, I believe, one of the more thoughtful pieces on cooperative federalism that has been rendered. Let me highlight some of the report’s key contributions.  

As the report reflects, there is considerable support at this juncture for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs; but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good of a, job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The report also considers the role that a citizenry — equipped with unprecedented amounts of environmental information and operating in a socially networked world — can play as a driver of environmental behavior going forward.

In terms of opportunities for adjustment or realignment, The Macbeth Report points to a number of options, including:

· Possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

· ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. The report advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can tuned. Permitting decisions may a good place to focus such pilot projects.

· Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice in implementation decisions.

· The report generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

· Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, the report recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give The Macbeth Report a look. Be sure to read again Steve Ramsey’s wonderful tribute to Angus, which we have embedded in the report. Many thanks to all who contributed to the thinking in the report, and, of course, a special thanks to you, Angus. 

PENTIMENTO FOR ANGUS MACBETH

Posted on February 22, 2017 by Stephen Ramsey

In Scaramouche, Raphael Sabatini describes the hero of the novel as having been “…born with a gift of laughter and a sense that the world was mad”.

The Angus Macbeth I knew for 38 years had one of the best laughs of all time and a keen appreciation for the occasional absurdity of the world in which he lived. After all, how else to describe a man whose  life-long professional endeavor was to attempt to explain EPA to Industry, Industry to EPA, and NRDC to everyone.  A Sisyphean task which he approached with skill and aplomb and, above all, a boundless supply of mirth.

I met Angus in 1978 as an aspiring lawyer looking for work in Carter-era Washington. I remember almost nothing about which we spoke. What does stand out is a long conversation filled with loud talk, laughter, an endless stream of staff lawyers entering and exiting during my interview to discuss some issue or other ( think Court of Requests), and cigar smoke.  I am pretty sure I got hired because I demonstrated I could stay with the thread of our conversation regardless of the interruptions and, more importantly, my shared love of cigars. That was, truly the beginning of a beautiful friendship.

I watched and learned from Angus, not just then, but throughout our working lives.  I watched him mold a group of really smart, sometimes unruly and quirky lawyers at DOJ into an enormously effective team. He made everyone he touched better.

I was amazed as he cajoled and jawboned his primary client ,EPA, into coming round to his way of thinking by the sheer force of his intellect and charm.  Angus could quiet the most obstreperous US Attorneys, EPA Appointees, or opposing counsel by asking a few direct, innocent questions and waiting until they either got the lesson or felt the bleeding. In private practice Angus would patiently explain to the outraged client that yes, the government was not being logical; sadly, it didn’t have to be; however, here was a good path forward. It always worked. Angus combined a big brain, cold, clear-eyed analytical skills, and the integrity to tell clients what they needed rather than what they wanted to hear.

Angus loved complex problems and working with smart people to solve them as much as he hated typos (his biggest condemnation of a piece was that it was “riddled with typos”) and slipshod work. He could express convoluted concepts simply and was the master of the one word answer followed by silence and “the look”. Then, he would take over the room as he set out the issues and the answers. He led by his own example and had as little ego as any brilliant lawyer I have ever known. You just didn’t want to let him down or do less than your best. He was the gold standard for what a lawyer should be. And for what a colleague should be. And for what a friend should be.

I saw him angry only once, when a group of Louisiana lawyers thought they could pull a fast one on the government. They came to DOJ to complain about what we staff lawyers were doing and, thanks to Angus and Jim Moorman, left with their tails between their legs.

I traveled with him from San Francisco to England to Alaska. We toodled around Bath and the Salisbury plain and met his cousins who owned a book store and designed jeweled badges for HRH Prince Phillip. I marveled at how everywhere I went, everyone knew Angus or had an Angus story. He was equally comfortable with CEOs and London taxi drivers. His sartorial splendor was legendary. I did actually accompany him to Hackett’s in London where I saw him buy a new jacket which he wore for 30 years. I think he owned the same shirt for most of the time I knew him. It was never tucked in and the front buttons were on the verge of becoming projectiles.

He had perfected the stage whisper mutter which he used at the right time and place to effect. He loved to eat good food, drink good wine, and have the occasional drop of harder stuff.  He was, after all, a true Scot. Once, we both decided to do something about our weight and decided to play squash at the DC Y.  Truly.  Can you imagine?  Thank goodness there are no “Access Hollywood” tapes of those somewhat ponderous matches.  Think the hippos in Fantasia dancing to the Waltz of the Flowers.

Despite being always on the go and in high demand for his legal skills, Angus always had time for friends.  He was at the house with baskets of flowers when Ann and I got married; talked the Woodies store manager into selling him the rocking horse which was part of the seasonal display for Andrew when he was born; composed memorable toasts and through a thousand kindnesses let one know one was valued. And his cooking : fabulous.  Dinners at the Macbeths-particularly at Christmas or Thanksgiving- were true creative feasts. I kept a list of the words he used with ease which I had never previously heard. He could actually tell you who Lord Acton was and what he famously said.

He loved being a lawyer. It spoke to his view that the world should be fundamentally fair and that the cause of justice was important. This sense of fairness drove him in his work on the scandal of the incarceration and property seizure which befell Japanese Americans at the hands of their government.

He loved JoAnn and “the boys” beyond measure. 

If I had 2 lifetimes, I couldn’t recount every hilarious and touching Angus story I know.  I am sure there are hundreds of his friends and colleagues who feel the same.  What I know is that the luckiest thing that ever happened to me, professionally at least, was meeting Angus Macbeth.  The smartest thing I ever did was to convince him to bring Sam Gutter and join me at Sidley. The second smartest was to hire him to help on GE’s biggest environmental problems. That he was my friend is a blessing to me. That he is gone is heart-breaking. Angus is irreplaceable.

Angus was quite simply a wise and good man. His passing leaves a huge hole in the fabric of the lives of his family, those who loved and worked with him, and the history of environmental law. He was one of a kind and I do not think we shall see his like again.

Angus, ave atque vale.