INTERVIEWEE: Jim Marston (JM)
INTERVIEWER: David Todd (DT)
DATE: November 11, 2018
LOCATION: Austin, Texas
TRANSCRIBER: Robin Johnson
SOURCE MEDIA: HD Video
[Numbers mark the time codes for the video]
DT: My name is David Todd. I’m here for the Conservation History Association of Texas. And it is November 11, 2018. We’re in Austin, Texas. We’re at the home of Jim Marston, and we have the good fortune to be talking to him. And he is a environmental lawyer who has worked for the Attorney General’s Office, in private practice with Doggett Jacks, Marston, and Perlmutter, and I think probably best known for his nigh thirty years at the Environmental Defense Fund Office here in Austin and in—in a national capacity as well. He’s also been involved with a number of nonprofits in the conservation world as well as in politics and other fields. And with that, I just wanted to say thank you for taking time to talk to us.
JM: Happy to be here, David.
DT: Right. Well we usually start these interviews by asking if there was some sort of early experience or early mentors, teachers, family, friends, that might have given you a first exposure to the natural world, a love of being outside, some sort of entry point to a life in—in conservation that you’ve had.
JM: So there are a couple of different folks that had influenced me very early on. One frankly, my father was the scoutmaster for—for my Boy Scout troop. And he either encouraged me or made me do a lot of—of Boy Scout activities, including the 50 mile hike at the—the—the famous ranch in New Mexico that the—the Boy Scouts have. And then also he kept me in th—till I got my—my Eagle Scouts.
There are a lot of camping trips there. I would say though, a lot of my interest in the environment is not so much about natural things, though I—I love them, particularly special places like Big—Big Bend National Park or the Grand Canyon National Park—but I think of them in regards to my work as more about protecting them from air pollution. Most air pollution you can’t see. But—air pollution we’re worried about the national parks as actually small particulates that give haze so we know—so there’s a place you can actually see the pollution you’re trying to prevent as opposed to, in cities, ozone is not something you can see, though I care a lot about it.
But it’s nice to have something that’s physical or visible as part of your work. I had some really great teachers that ju—a high school teacher named Geraldine Rosenthal, who kind of inspired me as a senior to—to—to do public service and she knew I was probably going to be a lawyer. And she talked about doing something more than making money. This is when I’m 18 years old. Had a congressman that I interned for and worked in his campaigns, named Jim Jones, pretty famous fellow.
Not the guy who massacred the fi—the folks or led the—the ma—mass suicide, but who was a congressman, eventually became the Ambassador to Mexico. And then I had, you know, I must say I had a roommate in law school who was into the environment a lot when I didn’t know that’s where I wanted to go. We went to—were going to our first law school exam and his—the galley proofs of his first law review article on the environment came. And I thought, wow. And he actually encouraged me to—to take the environmental law class and the environmental law clinic at my law school in New York.
And then that kind of led to working in—the environmental field in—at the Attorney General’s Office.
DT: Well so—Jim, so we—we were talking just a moment ago about some of the early influences in your life and you mentioned a—a friend in law school who had I guess written an article for an environmental law journal?
JM: Yeah, before I ever started law school. His name is Michael Gerrard, who had a very interesting career, now is teaching at the Columbia Law School and is one of their—I think the deputy head of their climate institute. You know, then I—I ought to talk some about some more Texas influences. Interestingly enough, I have—one of my professors at TCU. I thought I was going to go to—to either Georgetown Law School and work on Capitol Hill, or University of Texas and then go run for office.
And he saw this program called the Root-Tilden Program to train public interest lawyers. He saw the application, essentially filled it out, only thing I had to do was sign it. And he told me you—you need to do this. This is what you’re—you’re supposed to do. It’s a guy named Michael Dodson who’s still—probably he’s the mentor that’s done the most for me over the years.
And then, in Texas, a friend—first a—a boss at the Attorney General’s Office, but now a longtime friend and colleague on environmental issues, Rick Lowerre, who pushed me to do some difficult things at the Attorney General’s Office, take the lead on the Open Beaches Act when that was not very popular with the developers on South Padre Island.
And he’s been, you know, one of the premier environmental lawyers for all the time I’ve—in—in Te—al—premier lawyers in Texas for all the time I’ve been at EDF and he essentially started the—the fundraising committee to start the EDF Office here and recruited me to that committee, which then led to me being hired by EDF.
DT: Well let—let’s talk a little bit about your experience. You’re in the Environmental Protection Division, I believe. And was this under John Hill?
JM: I was there for the last two months of the—the Hill Administration. I worked for him. And then Mark White was the Attorney General. And so I worked for both of them.
DT: Well please tell us—maybe start with the—the experience of—of being in charge of enforcement for the Open Beaches Act, which I understood involved some visits down to the beach?
JM: Yes. Again, Rick kind of pushed me when he was the boss to—to do South Padre Island. I—and he did the rest of the state. Little did I know that South Padre Island was where the anger from developers was and where the—the highest risk of being physically attacked where I—I learned that along the way. But, in any event, the law—it’s a law made, authored and shepherded through the legislation by Babe Schwartz, a great environmental leader who died recently. He was a state senator from Galveston.
But the idea was the wet sand area was the public right away. And the—that goes back to Spanish law and people had the right to use that. You can’t block off the beach and you can’t block off access to the—the beach. And luckily for the developers of those hotels, we made them build further back, not on the wet sand. That beach has largely eroded. If they had built where they wanted to build, they would be, in some cases, under water. Fortunately, the law required them to build back and they still have at least a little bit of beach.
DT: And it sounds like you got some pushback though from some of these developers when you were working on it.
JM: Yeah, you know, this was in the middle of so-called “property rights” effort. There was fights in the Inner Mountain West and other places. Landowners wanting to build whatever they wanted to, wherever. And, of course, because the wet sand moves as the beach erodes, people were building at their peril. And also after a hurricane, if it had knocked something down, where that was, at the time, might have been fine but, after the hurricane, the sand was gone and the water had come in. They wanted to build on what was state property.
That was difficult. And then, of course, they wanted as big a footprint as they could at the time. Again, I—they’re lucky we protected them from themselves so they have actually—it’s not all wall to wall condominiums there. There’s actually the beach, some open space, which is why people go there. They don’t go there to be in a concrete high-rise. They be—need to be by a—a public beach.
DT: Do—do you recall any other cases that you took on while you were at the Environmental Protection Division?
JM: Yeah. The c—I had a case that got a lot of publicity in Dallas. At the time, it was a case I did with Brian Berwick; somebody could also be seen as at least a teacher, if not a mentor. We tried and won the largest toxic waste case in the state. We won what seemed like a lot of money at the time, now it doesn’t seem that much, but it was a couple hundred thousand dollar penalty, which is a big deal in, if I can re—oh gosh—1979. That’s been a long time ago. You know, we tried it to a jury and won a lot. And it was a fun case.
It was a little stressful case because I think a lot of people were waiting to see if he could get away with what he—he did, which was intentionally dump solid waste and doctor the records. Any event, I was lead lawyer there and—and it got some nice headlines about highest civil penalty in history in Texas.
DT: Do you—do you remember your closing argument?
JM: Well I do remember a little part of it. A lot of the waste was put into an open pit. And they were trying to say it was just, you know, a little dump site. And, you know, and no problem. Nobody goes there. And I both on cross examination, but in closing, refer to it as a “stock tank”. And I got the principal of the company to say he knew what a stock tank was and stock tanks are places where children would sometimes go to fish but often swim. And—and if children got into this stock tank, as I called it—I think they were calling it a gravel pit—and I said it’s a stock tank.
And that could cause lots of harm and I think that was a key part of the argument, that this was something more than just a technical violation or it was just some kind of okay disposal place. It was a place that was fraught with danger.
DT: Well—part of the reason I was asking is that—that it seems like one of the hardest things, the most challenging things, that—that environmental lawyers, maybe any lawyer, has to do is to try to explain a abstract, maybe intangible, esoteric thing in terms that a lawyer could persuade a—a jury or—or even a judge but to understand what’s at—at—at risk there? And I—and that seems like a perfect example of where you—you put—put something that’s maybe abstract and that kind of more day to day terms that folks could understand. I was wondering if there are other examples like that.
JM: Well let me just start with your question’s insightful. My number one complaint about the environmental advocacy community is we speak in statistics and not in stories. People learn from stories—parables or other stories. And saying, you know, some large number of people are injured or whatever, people can’t relate to it. One of the things we do poorly on—with regard to climate change is talk about risk numbers and—and, you know, the—there’s going to be a handful of inches or a foot and a half rise in sea level.
And, of course, people just think that means in that far, not up that far. But, you know, we’ve got to do it very differently. So I spend a fair amount my time communicating or trying to communicate. And I try to always have a story. We’re trying to talk about the effect of global warming in Texas and there was some animations about what part of the ship channel, both in Houston, Galveston, would be under water. And we tried to go even further. You know, the Exxon Chemical Refinery would be under water.
So we try to do those kind of stories and that—that’s one of the things I think we need to do more. And when I’m doing well, that’s what I do.
DT: Th—this may be beyond the era that you were there but I think it’s interesting that the Environmental Protection Division no longer exists at the Attorney General’s Office. And—and I was wondering if you could talk about sort of the vagaries of—of enforcing law in a political world?
JM: Well I was fortunate to be at the Environmental Division when we had Attorney Generals who wanted to enforce the law. And their idea was that crime should not pay. If you violate the law, your penalty ought to be greater than the savings that you got from violating the law. I don’t like to always talk about partisan divides. Unfortunately, in Texas, since the ‘90s—yeah, we’ve had a couple of Attorney Generals that were Republicans and saw their job very differently, not the idea of incentivizing people to follow the law but—and to reward the companies who did with—with some competitive advantage.
They’re more into—well we don’t want hurt—hurt this business, you know. “They’re—they’re good guys. I know them from the country club. Well so what if they polluted some, they probably didn’t really do it on purpose. They’re just—accidents will happen or boys will be boys” and slap them. So it’s got to be very hard to work over there. I’ve talked to the folks there. And you—you get in trouble for being a good lawyer there.
And that’s sad to me because I was rewarded for being a good lawyer and—and being vigorous and, you know, you didn’t go after anybody without cause. But that case State of Texas versus Dal-Worth Industries, the—the toxic waste case I talked about. This guy did it on purpose. He did it for years, got away with it for years. You know, the truth is—while we hit him for a lot, there—some of the years of violations were outside the statute of limitations. But I was encouraged to make an example of somebody who was truly a bad actor.
DT: So you—you worked with the AG’s Office from I believe ’78 to ’80 and then in 1980, you went into private practice with Lloyd Doggett and—and other partners. And I was hoping you could tell a little bit about that, both as a—a practice that you had, but also as an introduction to Lloyd Doggett who, of course, has been such a political leader in the state.
JM: Yeah, yeah. So I—I got to know Lloyd from two things. One, I volunteered in campaigns, including John Hill’s race for governor in ’78 and Lloyd was a leader in that and then some other campaigns along the way in—in 1980. But I got some press around that case where the headline was, “Highest Verdict in Environmental Enforcement”. I don’t—something like that in—in Texas ever. So, you know, he knew I could at least try one case. So I was their first as an associate and then I became a partner I think in ’84—I think maybe ’83—’83 or ’84.
And we were a trial firm, plaintiff’s trial firm. Didn’t do a lot of environmental work. I did two or three cases kind of on the side that wo—that wasn’t our bread and butter. And then—but while there, I—as—what a lot of lawyers do, they volunteer on boards. And I began to serve on se—more than one advi—no, Board of Directors for other nonprofits. And that’s how I got connected to working on the Advisory Board for—or I mean, the Fundraising Board, for Environmental Defense Fund.
DT: I see. Well, you mentioned in passing that you worked on a few environmental cases when you were with the Doggett Firm. Could you describe some of those?
JM: Well I know one case was related to a—a solid waste, you know, a—a big landfill case that we largely did pro bono. I think they paid a little—I think they paid the—the costs—court costs. Yeah, it’s a case we probably should have won if there was really a fair weighing of the evidence. But, on the other hand, Texas likes to grant permits. And—and we got some conditions on the permit that made it better but it’s very hard to stop permits being granted in Texas.
DT: And so most of these cases that you took on there, were they for landowners and neighbors [overlapping conversation]?
JM: Yeah, that’s—yeah. The—the—our clients were all neighbors. And it’s the—and I can’t remember the name of the landfill now, but it’s the one out on 290 in Northeast Austin.
DT: So you mentioned that—that you had met Lloyd Doggett in the course of working on John Hill’s campaign. Is that right?
JM: That’s correct.
DT: Is—was that a sort of segue opening into being more involved in—in politics in Texas?
JM: Well I had done politics a lot at a early age. The first time I had at least a title of responsibility was a campaign for a Congressional race while I was in high school. I wasn’t running but Jim Jones whom I referred to earlier, was running for Congress in 1970 and I—I had eight precincts that I was in charge of getting to—people to go talk to folks in person, go door to door. It was a different time. Politics weren’t done on the computer. You actually talked to people. People were less afraid. They’d open the door and talk to strangers.
This was two years after “Get Clean for Gene” in ’68, probably, when Gene McCarthy ran for president. Tens of thousands of young people went and tried to convince their parents’ friends to vote for Gene McCarthy. But any event, that’s what young people did at that time is go talk to other folks. It was a great experience.
I will say Kent State happened in 1970. I think it happened on a Thursday or Friday and then we were walking that weekend.
The change in attitudes at the door were—and this is in Oklahoma now—you know, I’d been appalled at a bunch of college kids had been shot for no good reason really by the orders of the gov—governor of—of Ohio. But some of these folks started seeing their young people as enemies and out there needed to be shut down, if necessary, shot. It was—it was a very interesting weekend, how harsh it was.
JM: But I’d, you know, work on campaigns a lot. Many of my really good friends have run for office. Many of them won. My wife ran at large and won a spot on the School Board. You know, I always thought I was going to run for office. Frankly, along the way, you learn some stuff about yourself, what you’re best at and what your best role is. And I decided maybe my role would be better to help other people than to—to be the office holder. Sometimes I’m not as—what’s the right word—reserved and do it right.
I’m—I’m not as restrained as I ought to be when I—I see or hear injustice and I say things. I guess Beto actually proved you can say that A word on TV. But back in the ‘80s—‘70s and ‘80s—nobody did that. But, in any event, the idea that I—I could help on the political side, I could do the legal stuff, but didn’t necessarily need to be the one that was running. There were other good candidates that had some attributes that I didn’t always share like restraint.
DT: What—what do you feel are some of your—your strengths in—in the political realm and—and maybe you can give some examples of campaigns that you’ve helped over the years.
JM: Well I—I’m pretty good at messaging. I mean, I anticipate what the questions are and have a way to tell a story that is strong, gosh, I mean, I worked in lots of campaigns. Kirk Watson, when he ran for mayor, he was running against an incumbent who had, frankly, had a—a pay to play situation with, you know—he had an insurance business and you got favoritism if you bought insurance from him.
And I helped Kirk about how to say that in a crisp story. You know, I have encouraged folks—I—I wish I had talked to Beto about the—the question he had in the last debate about climate change where Ted Cruz just made up some numbers and then used a study that’s completely—an industry study that the cost of this legislation was a gazillion dollars. I do think my willing to be outraged might have helped there.
I mean, I—I wish—I would have had Beto say, you know, rather than defend his vote for piece of legislation and try to say why the numbers Cruz was laying out were wrong, I would have said, you know, it’s outrageous, you have no plan. You’re going to do nothing and your kids are going to suffer. Your—and I would say that is immoral. I do think one of the things I try to help candidates do is to understand that what works are talking about values and specific harm to people. So –
DT: So have you found that—that hitting on some of these moral underpinnings to political issues really helps get a message across?
JM: Yes, I do. And I think sometimes people on our side want to be rational or they want to be fair and polite and they resort to numbers as opposed to right and wrong. And I often think, particularly on things like climate, an existential threat. You know, don’t talk about sea level rise. Talk about the threat to grandkid—grandkids or your children and—and doing nothing is morally wrong and it’s not—you—you don’t get away with just saying that your plan’s too costly.
What’s your plan? What are you doing? You know, are you willing to do nothing, you’re willing to risk the future because you won’t pay a nickel more for a gallon of gas? Man, I think we—you—that—that’s what we got to do more.
DT: So compare the stakes to the kind of marginal cost, is that—?
JM: Well, just—just talk about what’s at stake. And those who do nothing or would advocate doing nothing on big things, even when there’s uncertainty, are the ones that are, number one, risking a lot more money that will cost us, but mo—more than that, risking the health and safety of—of not even the next generation, current generations. You know, look at the—you know, hur—Hurricane Harvey, wow. That’s almost certainly a hurricane made worse by hot water, hot Gulf and had an unbelievable amount of rain. You’re—you’re from Houston.
You know what that was like. And we ought to be saying I think unequivocally your policies are causing that.
DT: Well did—do you think that that sense of—of concern about the—the morality and the—the injustice of environmental causes is what led you to join up with EDF because you had this very successful private practice. And then thirty years ago, you decided there’s another route to—to go and you—you joined with public interest law. And can you sort of work through it in your mind what—what was—what you were facing then? Why you made that choice?
JM: Yeah, there are a couple things that happened. Number one, Lloyd Doggett had run for the U. S. Senate and lost. But he was going to run for the Texas Supreme Court and we thought he was probably going to win. And that was a time when Democrats had an advantage statewide. And so the three of us had a meeting about what we wanted to do next and it was interesting. We loved working with each other. The firm was successful certainly monetarily, financially. But we all talked about what we really wanted to do long term.
We all want to do something slightly different. And I’d gone to NYU on this scholarship, the Root-Tilden Scholarship I talked about, which is designed to train public interest lawyers. And while I was helping a lot of individuals who had been wronged—either cheated in—by some business or—or somebody had been hurt physically. It’s hard to call that public interest: it is helping people who need help but it’s not the same. And so I thought maybe I ought to look at doing something different. The other thing is we had our first and only child right around that time.
And I remember—I think my parents are really good parents but I—I learned more from what they showed me, what they did with their life, than what they told me. And I thought forsaking that private law practice and the money that went with that for something that was concerned about public interest was a way to show this real little girl, as she grew up, what I thought was important.
DT: And it sounds like not just about the public interest now, but the public interest in the future, in your child’s generation. Is that fair to say?
JM: Yeah, yeah, yeah, yeah. But I me—you know, she was a little and I wanted her to know what I thought, what I valued. And I had choices and I was lucky, frankly, I—to have a chance to go work for one of the premiere national environmental organizations and—and have a—a important position from day one. And, thirty years later, I’m still there.
DT: Well maybe you can describe a little bit about Environmental Defense and—and its roots here in—in Texas.
JM: Yeah, I—David, I actually think you were on that committee that Rick Lowerre helped organize some folks to try to see if we could raise some money to start an office. Rick was—was an—a big Sierra Club guy. But he also thought Sierra Club had its role but Environmental Defense might be a really good fit for Texas, that it—number one, use of economics would be really helpful in Texas. Some bipartisanship. EDF’s very bipartisan. That would help get things done in Texas. And the use of expertise.
So Rick started a committee and I—I believe you were on it. And I was on it to raise money. We ha—we were supposed to raise money to of—run an office for three years before they’d open the office. We had a part-time fundraiser but that wasn’t really working. And I had done fairly well with regard to my quota. And w—frankly, Fred Krupp came down with Jim Tripp (who’s still at EDF and who I should have mentioned was an inspiration and a mentor as well) and basically said we’re not really going fast enough.
If you won’t agree to—to—to take a—a paid job, not paid very much by the way, but to work at this, at least halftime, we’re going to shut the operation down. And I thought, you know, that—I’ve got—this is a time of transition at my law firm. Why don’t I just take advantage of that, see it as a sign that I ought to try this. And I was arrogant enough to think, “Oh yeah, I can do that.” So I did and thought I was simply going to raise the money and then—to get it started—and then they offered me to be the head of the office and I thought I’d do that for three or four years. And—and now it’s thirty years later.
DT: So what were some of the first projects that EDF worked on after you got it started?
JM: So EDF was organized geographically then, not as it’s known now by these big, intense subject matter efforts. So we had—we had a Texas Air, a Texas Water, and a Texas Solid Waste effort. And I led the office but w—worked mainly on the air pollution side. And we were looking at ways that we could reduce air pollution, particularly from power plants that were the largest source of air pollution.
And there we were working on first, trying to convince folks what seems obvious now. But there was somehow denial in Texas that pollution went hundreds of miles. What we call transport. I remember the head of the Environmental Division at TXU, a guy said well, if I believe that air pollution from our coal plants in East Texas were causing air pollution in Dallas where my ch—my grandchildren live, I’d shut those plants down.
So we said, okay, and we got a professor of the University of Texas—he’s still there—David Allen—to work with one of our staff scientists. And they did a study and showed, sure enough, those plants were a principal cause of the high levels of ozone in Dallas-Fort Worth. By the way, they didn’t shut the plants down. But we did demonstrate cause and effect and those plants have cleaned up pretty dramatically. And the good news, by the way, is now they’re shutting down. I think three of the plants have—will be shut down by the end of the year—maybe four.
DT: So your focus within the EDF, at that time, was Texas air, is that right?
JM: Texas air but I hired the other staff. I did our lobbying at the time. I raised money, had an engineer who worked on solid waste. We had—later on, we had Marilu Hastings, who’s a woman of renown in Texas environmental fields as the head of the—or the, yeah, program head, Vice President of the Mitchell Foundation who gives out the largest amount of environmental grants in the—the state. I hired her to—to do a—a recycling program in Houston. Houston was one of the last big cities to do recycling. So we do stuff like that.
And we did water—water quantity issues very early on. And eventually, in the early days, we started working on Mexico/U.S. border pollution, co-called Maquiladoras and how could we reduce that pollution.
DT: And was there some work you did in El Paso on Juarez with charcoal and—?
JM: Yeah, I couldn’t decide whether to do that long story now or later but I’ll do it now. So there was all this debate around NAFTA at the time. And w—w—we actually thought it was an opportunity to leverage cleanup among those pl—plants. And we were concerned, in large part, about what was the—being put in the air. So we worked with a number of plants. I’m—I—I’ll tell two stories.
Number one, there was a auto parts plant in Brownsville—I’m sorry—in Matamoros, across from Ba—Brownsville—that we visited and figured out, number one, there’s a lot of air pollution coming out of that. And one of the things they were doing—they had this automatic machine that painted, you know, parts as they went by. But when there was a space in the parts on the—the assembly line, it painted the air. And we asked the little question, can you program that to only paint when there are parts there? Oh yeah, what a great idea.
Of course, that saved them money. The other—then we went to the dump there and saw hundreds of thousands of pounds of plastic waste there. And we figured out it was from this auto parts place. And we asked them why they had all this waste. And we said well, every time we switch colors from bl—blue to red or whatever, we had to purge everything in the lines. And we, you know, we change colors four or five times a day. And we asked, couldn’t you just paint for several days, just do red and change what part you’re making but don’t change colors—oh yeah, that’s a good idea, too.
So we ended up saving them lots of money and helped on pollution that way. But you had asked about El Paso. So El Paso has a—a town called Ciudad Juárez across the way and there’s some odd things about the Clean Air Act, which basically said if you’re nonattainment, that means you violate the health standards, you’ve got to clean up, even if you’re not principally to blame. The law’s gotten a little better at—about that since then.
But it meant El Paso was spending a lot of money doing—like on things like trying to get traffic to be done differently there when Juarez, across the way, had roads that were not paved and were sending up air pollution there. And then the other thing is that a lot of the pollution in El—El Paso was coming from a—the backyard kilns, where people were cooking or making products or—in their backyard but burning stuff and—and like bad stuff, everything from wood, which it wasn’t so bad—but there were logs that were soaked in creosote or toxic paint or—and so we got EPA to allow the city to change its plans.
It could get credit for doing things in Juarez that cost less but got more benefit than only spending on things to clean up the air in El Paso. So convert the backyard kilns to propane or natural gas. Pave the streets in El Paso rather than trying to deal with transportation. I mean, in—pave the streets in Juarez versus trying to deal with the transportation patterns in El Paso. El Paso was better off both financially. The businesses were better off financially and then the air got cleaner, spending less but doing it smarter.
DT: Well it seems like these—these three examples you’ve given—the—the—the paint shop, you know, the—the plastic waste site, and then these kilns that—that, in each case, EDF and you, found a way to get a good environmental result but also to save people money, [inaudible] that was the maquiladora or it was the City of El Paso. Is that a—something else you could describe in other EDF projects in Texas?
JM: Yeah, yeah. We often call it win-win situations where you—you clean up the environment and save money. And what you often realize is that a lot of pollution is from unnecessary waste. You’re either creating a waste product you’ve got to d—deal with like the plastic in the dump in Matamoros or the sp—painting the—the air or, you know, on the climate side, so many things we ought to be doing.
We ought to be—to reduce greenhouse gases. We ought to do, even if we didn’t have a climate crisis, because what we’re doing is wasting resources, burning unnatural—unnecessary fossil fuels. You know, what the Trump administration—wants to do with regard to the car standards. You know, I worked on the car standards in California, one of my proudest moments back in 2002, which led to a series of—of regulations under President Obama that all industry agreed to.
DT: Can you tell about that—that [inaudible] in California and the—the—the auto standards that you worked on there?
JM: Yeah, so it’s an interesting story in that a local group had this idea that they were going to pass the first in the world, not the first in the nation, first in the world, standards on greenhouse gases from automobiles. And they’re going to take on the auto—automobile industry in California. The environmental groups thought oh—the national ones—oh, that’s too hard. I mean, these—these car companies.
And we fought them before and th—that’s hard to—to win. But this group got a freshman member of the House of Representatives who—who just went for it and kept passing, moved it through the process and got way down the line and they passed through the House. It was ready to go through the Senate but the automobile folks had gotten to three House members—actually their—their mem—members of the Assembly in California—the lower House. And so the bill would have to be voted on again in the state Assembly and there was not enough votes.
So by this time the national groups thought this is pretty good idea, maybe we ought to help. And we had a donor who was offering to give us a million dollars to go work on this. I got al—I had done some fair amount of our political work over the years so I got, was added to the call about how should we spend this million dollars. And they had a plan to spend it on TV, which wasn’t crazy except—except we were going to spend a million dollars on TV for a month. The other side had been spending and was going to continue to spend a—a million dollars on TV a week.
No matter how good our ads were, that probably wasn’t going to work. So I said don’t do that. And so somebody said smarty pants, what would you do? Well, I don’t know, but I’ll go out there and look around, let you know. And it’s only three votes, okay. So it’s not—so I went out there and spent some time and got to work with John Burton who was the Senate—Pro Tem of the Senate. His futher—his brother, Phil Burton, was a fa—famous Congressman from there. But he—this was a—a character of characters. I went out there.
He wanted to know who the hell I was and why I was out there. And I said well I’m, you know, I’m—got some resources and we think we can help get three votes. And he wanted to know, “what do you know about California politics?” And, fortunately, I had a really, really smart Stanford grad, recent grad, 23 years old, great researcher. And had researched the hell out of the eleven members that were our targets in the House. So we not only knew, you know, obvious political stuff, but we knew college roommates. We knew where they went to church.
We knew a bunch of stuff about that. So, any event, I purs—and I had read the briefing papers on the plane about, I don’t know, you—when you have four-hour flight from Austin to—to San Francisco going against the—the wind so I knew those eleven people’s bios pretty well. I just rattled them off and he thought damn, you do know this stuff. What he didn’t know is I didn’t know anything about anybody else but I knew a lot about these eleven people. So, any event, he thought I had something to say.
And together, he and I schemed and, within about two weeks, got a vote. We did some really fun things. One of the things the other side spent all this money defaming the bill and number by name, you know, AB1302 or something like that. Tell your members to vote no on that. And then—so the first thing we did was have a plan that we would critically amend another bill with another number and put all the good stuff on that other bill so nobody voted for 1302 at the end. They voted for 1560 or something. And then yet—then we, of course, did it very quickly.
And we did a lot of creative things. Paul Newman’s wife, Joanne Woodward, was on our EDF board at the time. And I knew from my mother that women—a lot of women—thought Paul Newman was hot stuff. So we literally got Paul Newman to call four women legislators. Two of them were our targets and two were people we were worried were going to flip and—and make a request from Paul Newman to vote for this bill. The funny thing is some other women legislators though, whom we didn’t have Paul call, were unhappy that they didn’t get the attention.
I will say one of the—the younger women was unimpressed because she didn’t know who Paul Newman was at the time. But we—oh we got him to call—this is a guy who was 70-something years old, still racing cars, and, you know, on racetracks—we had him call from the racetrack on a Sunday with the noise in the background. But, anyway that helped a lot. In the end, we passed the vote, the bill with no votes to spare. We—we had three votes we knew—we—one was pretty flakey. We were afraid he was going to run out on us and he did.
The other side literally grabbed him, ra—ran him out of the Capitol, sped him to the airport and flew him to San Diego. We had anticipated that and we had one other vote they didn’t know about—one of the women that Paul Newman had called. And immediately had the vote and passed it with no votes to spare. But, any event, that—that bill, for the first time ever, had a deal that we were going to reduce greenhouse gases in automobiles. There was litigation about it.
But we won the litigation and eventually got—moved into the fleet standards, the corporate average fl—fleet average—CAFE yeah that—that the automobile manufacturers—first, you know, at the time, they said, “they couldn’t do this, this was impossible, people won’t buy these cars.” Well once they had to do it, they have really smart engineers. Their engineers could figure out to do it. And then once they started advertising about you save money on gasoline, people started buying more efficient cars. So it was good for them.
But, unfortunately, the Trump Administration I think because they don’t want to do anything that—that Obama did and they’re just against regulations or—or really they’re against protections (that’s what we all call them—they’re not really regulations, they’re protections). Just to be against them, they’re trying to roll them back. We’re in a big fight about that now.
DT: Well you—you’ve told this great story about vehicle emissions but I—I believe a lo—a lot of your work has also been on stationary emissions. And I was hoping you could talk some about the renewable portfolio standards and about TXU.
JM: Yeah. Yeah. Well I’ll—I’ll—will tell you the end of the story is Texas, on the whole, has a bad record on environmental protection. But the—the end of this story is Texas led, in a big way, and had made it a worldwide difference. And at least one of the—he wasn’t the lead player but an important player was actually Governor George W. Bush and hi—and some of his staff people. There was a proposal to change the way utilities are regulated and paid to allow retail competition, to allow—not just have a monopoly and you can only buy electricity from that utility, but to let the utilities compete.
There were some thought it would lower prices and—which turned out to be mainly true. But it was—the utilities first were against it and th—then did some math about we can make more money. So then they switched within a month. At that time, Texas was a two-party state and this is a reason to have two-party state I think—that you get better outcomes. So that—the—there was a smart Republican who was the head of the Senate Committee named Sybi—Senator Sibley but the House was majority Democrat and the chair of the house was a Democrat.
And he was a protector of—of the environment and he was also cared about consumers. And he basically thought they could only get through the—the state House if they had some progressive votes. And in the environment was one place they might be able to get some of those votes. And so they came to us with what would it take for you to support the bill? And we said two things. One, we got to do something about this grandfathered bill—power plants—the ones I talked about earlier with regard to TXU. Got to—they got to reduce their pollution a lot.
And then we wanted something called a renewable portfolio standard. And we came up with a number that people thought was a little odd at the time. We want 2000 new megawatts of utility scale renewables. You know, why do we want to do that? Well we—we knew that in the entire U.S. there are 2000 megawatts of utility scale wind. And, at the time, wind was a lot less expensive than solar and if we were doing the program the way we wanted to, which is lowest cost renewables win, because we do care about cost, that wind was going to ge—get almost all that 2000 new megawatts.
And we said we’d do that—we’d support the bill if we got those two provisions. Later another group supported it with, got some—some efficiency—energy efficiency added to it. But people tried to get us off the bill and, you know, do this and that, all sorts of horror stories—almost none of which have come true. We stuck to this is what we need, this is what we need and, at the end, the—the utilities tried to pull—pull a fast one. We can’t—we can’t do this renewable portfolio standard. We’re—we’re not going to do it.
It’s—and the House chair said well I—I told Environmental Defense Fund that we would have this provision and they supported your bill all along. He said look, I’m not going to pass this bill over the utilities’ objections. If you all don’t—don’t want the portfolio standard, we won’t pass anything. You know, I’m to going—we won’t—won’t have no bill at all. You’ve got one hour. Go back and tell me whether you want the bill with the portfolio standard—renewable portfolio standard or not. They came back and said we’ll take it.
And we passed the bill. And we bet—this—this is one thing I think environmentalists ought to do more—believe your own rhetoric. Believe in your technology. We believed that if you would double the amount of wind in the country, the price of the technology would go down and the quality of it would go up. And it did and, you know, we’ve gone from 2000 to, I don’t know—we have 25,000 megawatts in Texas alone and nationally, I don’t know, probably 150 or 200—let me do the math—we have 25 thou—well over 100,000, maybe 200,000 megawatts of wind.
And, by the way, that started a—a worldwide revolution in wind energy. So we made a deal, stuck to it, were clear what we wanted to—to do, believed in economics and the economics we believed in is the economy of scale. You manufacture more; the cost per unit goes down. We—we—and we believe that the technology was as good as we were saying. And we dared test that and we turned out to be right.
DT: While you’re talking about renewable energy, could you talk a little bit about the—the infrastructure that needed to be built up to take on the—the job of moving power from the wind fields in West Texas to the markets in East and Central Texas?
JM: Yeah, so most of the good wind places are in West Texas and along the Gulf Coast. And it was ea—and—and it was easiest to build it in West Texas because there’s fewer people and trans—transmission lines would be easier to—to site and build. But we went from 2000 megawatts that were supposed to be built in ten years. We actually surpassed that in less than six years. We changed their portfolio standard from 2000 to 5000 so it—2 ½ times and ag—again, we’re going to do that over ten years. That got done in three years.
That’s a lot of electricity in a place that didn’t have a lot of industrial sources. So we had—when we—the second time when we added to the portfolio standard, we added some provisions with regard to building transmission lines and a way to do it in a way that was smart and fit with Texas. You know, we don’t have a lot of restrictions on industrial siting. In fact, at the state level—essentially none. But we wanted to have some protection but we also wanted to have them built fast.
So we had the state do an analysis of—of what were the best places to build the lines for wind that would be built in the future. And we came up with these zones. And if you build here, you got fast tracked through the process. And all the lines have been built, built quickly. We had had the problem in other states where there’s always a fight with landowners and it helped that the power could get from West Texas to Dallas-Fort Worth, Austin, even on to Houston. And now—now more power’s being built along the Gulf Coast.
That has its own—own problems but, in terms of there’s more people wh—live on the land there, makes it harder to get through. But we’re getting that done too. But the idea was let’s plan, have preferred corridors. And if—and if you are a utility building in the preferred corridors, you get faster treatment.
DT: So, Jim, when we left off, we were talking about—well first mobile sources, then stationary sources, in particular, the renewable portfolio standards. But I know that—that one of your really big contributions was trying to—to change TXU’s attitudes about their stable of coal plants. And I was hoping that you could talk about that effort.
JM: Oh, one interesting story. So Rick Perry is governor and this is now 2006. Out of the blue, Rick Perry issued an executive order to fast track the permitting of coal plants in the state. And what the heck is that about? Well couple weeks later, we figure it out. TXU made this announcement that they were going to build eleven new coal power plants in Texas and were clear that Rick Perry was doing some political favors for his buddies at TXU.
So first we sued Rick Perry because that order was clearly illegal, violated the Administrative Procedure Act, and then we intervened in every one of the TXU cases. Great law firm with a lawyer named Tom Webber agreed to bring his team and give us discounted rates. They’re a firm that did oil and gas work so they were—had some bona fides on the industry side but thought this was abysmal. And then we started discovery and we learned all sorts of stuff. We had efforts that were communications about how bad this was.
We calculated how much pollution it was. It was an astronomical amount. It would—it would have been—if the plants had been built, it would have been more total greenhouse gas pollution than 26 other states. Not them all combined, but the new plants at TXU would have been more than the total pollut—greenhouse gas pollution—cars and power plants and everything else—of 26 separate states. I mean, it was a massive amount. These were a lot of plants—they were really big plants. We fought them in the—the press and we fought them in the legislature and started to make some headway.
You—and I—I actually think I—I don’t know whether I was being a smart aleck or smart but, at one point, I ss—got quoted in the Fortune magazine saying they need to remember that pigs get fed and hogs get slaughtered. That they were being greedy, overreaching, their stock prices had gone up, started to fall.
And, out of the blue, we got a call from Bill Reilly, who had been the head of EPA under George H. W. Bush, who was with the private equity firm saying they were thinking about buying TXU. But they’d only buy it if they could make peace with us on these fights and they did not want to be at war with the environmental community did not like wh—the taint that—that TXU was getting to be on them. And they were prepared to reduce dramatically the number of plants they built. I flew out to California literally under the cover of darkness and it—my wife was out of town.
I guess my daughter was in college—would that be right—yeah. And I had to do so—had to figure out what to do with my dog but I boarded the dog and went out there. Couldn’t even tell my staff exactly what was going on, but I said, “stand by”. And we negotiated for about thirteen hours. Eventually they agreed to—they would only finish the plants they had—had already been started, where over a hundred million dollars had been spent on the two plants. I knew there’s no way we could stop them.
But they agreed to twenty or so other things, including a bunch of new commitments on renewable energy, energy efficiency. They set up a Sustainable Energy Advisory Board that I was to be on. I thought it would be a lot of work. And I knew because of our policies about taking gifts that pr—everybody else on the board would be able to get their transportation paid. They’d fly in and get to stay at a fancy hotel and a dinner the night before. I wouldn’t get to do that. So I kiddingly said to them, you can build another coal plant if I don’t have to be on your board. I think I was kidding.
They thought I was kidding. I might have been serious. But, at any event, they didn’t take me up on it. We—but they ended up keeping all their commitments. Those plants were not built. Frankly, again, we saved them a bunch of money because those plants would soon have been uneconomical. The whole assumption that this worked was based on eleven dollar gas or thirteen dollar gas. And it’s been under four or barely four for many years. By the way, the company—it’s still a bad deal. The plants they did have we—became uneconomical and they had to declare Chapter 11.
They’re coming out of it. But they lost a lot of money in that deal. But, any event, we stopped those—those plants from being built. Frankly, my—head of the EDF Development Office said you can’t do this. You’re not going to win. And everybody in the TXU area, particularly Dallas-Fort Worth loves them because they give out money to the little league and they sponsor the junior league, and they, you know, contribute everything. And I said we have to. There’s nobody else to do it. It was not in our—our plan but we decided we had to fight.
And the first thing you do is start fighting and then figure out what works. But it’s one of the things I’m proudest of.
DT: Tell us about another project that I think you’ve been involved in personally and I think EDF has had a stake in as well—that sort of brings EDF’s approach to trying to understand markets better, keep demand at a—the lowest possible level so that there’d be less environmental impact. Now the—the project I’m thinking about is Pecan Street. And I know you’ve been on the board for many years. And could you tell a little bit about what the goal is there and what some of the projects have been?
JM: Well, it initially was a scoping idea of how could the Austin utility become the utility of the future? What were—what could it be different? And—how could they have a different business model? I was added to the working group and eventually kind of became the one who ran the first part of the project. And we brought in a bunch of corporations, mainly high tech, but some other companies, both national and Austin based to think through this utility of the future idea.
Along the way, Pecan Street became kind of a—not kind of a—a analytical think tank with some expertise. And I have been on the board—right now I am the chair of the board. But the idea is – they’ve gathered the largest amount of utility customer data in the world. They have it on a fifteen second increment and they know—they have lots of participants in this test and they measure and where it is and what it’s doing and have had a—a—a number of interesting successes, including ways that you can incent people to use less electricity.
The cheapest electricity and the cleanest electricity is that which is never used. So that’s one of the things we know. I also did a study about solar. All these solar panels on houses have been facing south. Makes sense if you’re in the no—the northern hemisphere that you get the most energy there. But it’s one thing to get the most energy. It’s another thing to get the energy when it’s needed. And so you have electricity use, certainly in places where there are hot climates, where you use it more in the afternoon and a lot less in the morning.
So getting a bunch of solar at nine in the—or ten in the morning doesn’t really matter very much economically. When you need it is in the afternoon and early evening. And if you faced your panels west, you match the setting sun and you get solar power when it’s most valuable to the system and most get paid the most. So a number of utilities and including the state of California, have started encouraging solar on homes to be placed in the west to—to d—to match generation with demand.
So Pecan Street is about lowering demand but it’s also about having generation and demand match up. There’s a hundred and something utility—I meant, not utilities, universities using the data around the country and a bunch of corporate partners, I think over a dozen right now. There’s been as many as thirty. Staff of—of twelve. We own a laboratory house that the University of Texas Architecture program built, designed in the Mueller neighborhood. You’ll know that is a neighborhood where we repurposed the—the airport and built a mixed use community of lots of homes.
Most of our work has been testing things in that neighborhood because it was new. Also a lot of people move there because they like the idea of this new urbanism.
DT: That’s helpful. Another thing that—that I—I know you’ve been involved with that’s outside of EDF but is supportive, I think, is—is Texas Observer. And, you know, you’ve done so much in the courts or at the state capitol but it seems like another partner has been having good media coverage that can give the kind of press that—that a lot of environmental stories wouldn’t get otherwise. And I was hoping you could talk a little bit about that.
JM: Yeah, so I—I would say I’ve served on, you know, I don’t know, fifteen or twenty boards of various types—some national, some st—state. And my parents were—spent a lot of time on various boards growing up—while I was growing up—some church related but some other civic boards. So I had that as an example. But Texas Observer, for those who don’t know, is a magazine that was started in the ‘50s, when most press in the South did not cover certain things—race, lynchings, certainly ideas of gay rights or women’s rights were not even on the radar screen.
Race was on the radar screen but if it was covered, it was, you know, some outlandish way of lying about what’s happening in the South. It evolved over time, has had some famous editors. Jim Hightower was an editor. Molly Ivins. And then Molly had become the chair of the board and I knew her from politics. And she asked me to join the board. I was on the board a few years with her. And then as she was dying, she asked me to—to take over as the chair of the board for a few years. And it’s a – it covers the story—well—well there’s two things about it.
Number one, it long form investigated pieces that are almost unheard of now in the time of snapchat and all those other things that I don’t really know a lot about other than you can’t have much time or attention. But these, you know, 15,000 word stories are more—maybe the New Yorker and the Nation do things like that but not many other things. And they do cover things that nobody else does, including still race issues—immigration stories, gay and lesbian stories, what’s happened to the public schools as people try to steal that money and give it to their friends in the—the private school world. But I’ve been on there.
I love it and they also write really good, thorough, environmental stories that nobody else covers. I got to be careful. They always give us environmental story that even mentions EDF, I got to say that I’m on the board. I intentionally don’t have them write many of our stories because I don’t want them to have that conflict, but they do write about the larger environmental issue a lot.
DT: That’s good to know. If you have the time, I’d like to just ask one more question. And that’s you’ve I think mentored a lot of people who’ve come on staff at EDF and in other roles in your life. And I was curious how you might express your con—concern, interest for the environment and—and maybe pass that onto younger folks who—who might be interested in this—this area?
JM: Well, I think if anybody looks at what’s going on in the planet with any open mind, you know there are a lot of things at risk—species. Sixty percent drop in species in the world, almost all caused by human activity. Climate change, the report from the IPCC recently says we don’t have many years to fix it. We have twiddled our thumbs under most of the presidents since the—the big data came out in the ‘90s, particularly this president that’s not only twiddling thumbs but going backwards. We—we’ve got to do stuff that will reverse that.
The good news is cities and states are doing some things. Industry is doing a lot of things that the government won’t do. But I guess I would have two lessons. Number one, our—our victories are not linear. We—we win and then we lose. Former president of Sierra Club [Carl Pope] once said we—we don’t win final victories in the environmental world. We just get stays of execution. We stave off bad things for a while. So you got to keep at it. Know that you don’t get to—to give up or you don’t get to stop and the reverse of that is you don’t quit when you lose. Come back and fight again.
And some of the stories I told are stories—are—have wins after losses. The other thing I would say is have fun. Understand if you’re getting to work on environmental issues, you are a lucky person. You get to do something that matters. And you can get some attention and enjoy the spotlight and you’re working with amazing people. Young people—if you work in this field, you get—there are other unbelievable folks that are—some of them are 75 like Jim Tripp and some are 25 like people in my office who always inspire me with what they’re doing day-to-day.
So enjoy your colleagues but have fun doing it. That—Molly Ivis used to say the key thing about politics is to have fun. And I’ve tried—I try to take that in consideration all the time.
DT: If you could give an example, I understand there may be a—a hall that you’re—a virtual hall of shame that you’re building?
JM: Well this is a, again, a—a—not an EDF project. It’s—I’m on the board of a new project called Cowboys for Liberty, which is intentionally a non-PC name to kind of confuse folks but the requirement i—we work on projects that—that try to move the needle and that requires things to be—to do a project, it has to pass the test, has to be fun to work on, has to be funny, we have to irritate our opponent so we don’t call them enemies. We do call them opponents and we go—got to do it largely volunteers.
So we were noting the fact that the bastards were getting away with doing bad things on climate change and gotten worse under Trump. And denying it and putting their pollution there and having political po—po—policies are just crazy. So we thought ahh, how do we hold them accountable? And I remembered a museum in Budapest, Hungary, of all places, where after the communists left power, finally, they agreed not to kill anymore people but they negotiated a complete and total immunity for all their thugs who had killed folks, tortured folks, during their years of—of rule.
And the people rose up. We can’t throw them in jail but we can tell their grandkids and we can tell posterity about what they did. So in this museum called the Museum—what’s it called—the Museum of Terror—they put—have a big wall. They put up photos of the worst of the worst with biographies and where they live—to hold those folks accountable for the future. So what we did—we didn’t really put up a wall yet. We created a hall of shame that’s—then we borrowed ideas from the Baseball Hall of Fame where you have electors and election and nominees but we have a virtual Hall of Shame.
We elected a dozen—the—a year ago. We’re about ready for the second round of elections. We have electors who—who vote and then we publicize it. And, at least to me, it’s fun to work on it because we get to—to push back some. We’re not stopping everything but we’re, you know, I—there—the people who got elected the first time—they probably don’t care. I mean, they’re the worst of the worst on climate.
But I think there’s some other people out there who are doing bad things that may think, you know, I don’t want to—when my grandson Googles my name, the—the third thing that comes up and he’s a member of the Climate Denier’s Hall of Shame and maybe will influence a few people there. But the idea—I do think you ought to hold people accountable and you can’t let people get away with it. This is one way we could do that and p—and, by the way, I work with a lot of fun people on this and it keeps me going when things are going bad with the Trump Administration. We’re not—we’re not caving in completely.
DT: Well I’m glad you’re—you’re remembering and finding ways to have fun. Is there anything you’d like to add before we wrap up?
JM: No, David, thanks for doing this. This—this is memory and this—this is about—kind of a corollary of my Hall of Shame or our Hall of Shame. It’s just let’s celebrate what we’ve gotten done and hopefully inspire other people.
[End of Interview with Jim Marston – November 11, 2018]