Fighting for Air
Robert McKinstry Jr. works to tackle climate change
Published in 2022 Pennsylvania Super Lawyers magazine on May 25, 2022
When it comes to sustainability, Robert McKinstry Jr. walks the walk.
In 2018, McKinstry left Ballard Spahr, where he’d practiced since 1987, to set up a solo shop with a focus on environmental law, sustainability and climate.
And at home? “I have an induction stove, which is electric,” McKinstry says. “It’s very efficient. I also eliminated oil heat here and put in ground-source geothermal, which uses geothermal and a heat pump. You eliminate greenhouse gas emissions that way.”
And, naturally, he produces his own electricity, thanks to 12.15 kilowatts of photovoltaic electricity. “And I have solar hot water, too.”
When he needs to zoom around Kennett Square, where his practice is based, he goes hybrid. “It plugs in, but it does use some gas,” he says. “But I’m up to 52, 53 miles per gallon.”
Raised in a Quaker household on a farm his family has owned since 1936, McKinstry grew up with a love of nature and a socially conscious attitude. In 1979, he earned the first joint degree conferred by Yale Law and Yale School of Forestry and Environmental Studies. That’s also where he first became concerned with climate change.
“I came out of [a climate change] lecture thinking that if people continue to rely on coal, that will be a real problem for climate,” he says. “And that’s exactly what has happened.”
Facts on the matter have been muddled due to a misinformation campaign McKinstry attributes to Big Oil. “There actually is a memo from the American Petroleum Institute, from back in the ’90s,” says McKinstry. “And in the memo, they say, ‘Hey, this is going to degrade our reserves. We need to go out and recruit people to raise questions about the science [of climate change].’”
Armed with a JD and a mind toward climate, McKinstry joined Ballard Spahr after six years at another firm and co-founded the environment and natural resources group.
“My practice involved a full range of environmental issues—running from solid waste to hazardous waste,” he says. “After the turn of the century, I started focusing on climate change.”
From 2001 to 2007, McKinstry held the Goddard Chair in Forestry and Environmental Resources Conservation at Penn State. In that position, he taught as a full professor and devoted the remainder of his time to research and public service in the fields of environmental and natural resource conservation. He chaired annual conferences open to the public; his first, in 2002, focused on climate change. “The theme was important environmental problems where states were taking the lead because the federal government was dropping the ball,” McKinstry says.
McKinstry also wanted to reduce the damage already inflicted. With three other partners, he launched Carbon Trap Technologies while at Penn State, which captured carbon dioxide with the intent of producing usable products, such as dolomite (akin to limestone) from the air pollutant. The startup mastered the capturing part, but ran out of research dollars.
“We got a number of investors, and we put together an LLC, and we got some loans,” McKinstry says. “We were able to extract the CO2, but then we just got this lump of something that needed to be processed further to get the products. It didn’t look like we could get enough additional money for the research [to make it work], and at that point, the potential market fell apart.” (Notably, in 2021, Tesla exec Elon Musk pledged $100 million to whichever startup presented the “best” carbon capture technology).
McKinstry found other ways to fight for clean energy. In 2003, he represented a group of leading climate-change scientists trying to force the EPA to follow the guidelines of the Clean Air Act by regulating greenhouse gas emissions. As the counsel of record, he filed amicus briefs in the U.S. Supreme Court case Massachusetts v. EPA, and the Court ruled that the EPA had to obey the Clean Air Act.
“I was teaching climate change at Penn State at the time,” he says. “I remember when we won, I walked in the class after the decision came out and I got applauded by my class.”
At his solo shop, McKinstry focuses on environmental, climate law and consulting. He’s got a robust challenge on his docket. “I worked to put together a group of petitioners to advance the [cap-and-trade] rule and change it to go to zero [emissions] by 2051 in Pennsylvania,” he says.
Currently, he notes, there is no incentive in Pennsylvania for companies that burn fossil fuels to stop. Cap-and-trade is a program that would charge power plants according to how much carbon dioxide they emit. Those proceeds would then be invested into clean energy efforts throughout the state. McKinstry’s petition, which would charge all major emitters—not just power plants, like the current program—is pending in front of the Environmental Quality Board.
“I enjoy trying to make a difference,” McKinstry says.
Wanna Get Off the Grid?
Things to consider before going solar:
- Is your roof ready? Older houses may need roof repairs first.
- All panels are not equal. Photovoltaic panels, like McKinstry’s, use solar cells to convert sunlight, while solar thermal panels use mirrors to concentrate sunlight.
- Check your permits—every city, county and state has different rules.
- Cost. Upfront costs are pricey. Rental panels might be an option, too.
- Do your research on applicable rebates and tax incentives.