Thursday, September 13, 2012
Many environmental law profs have commented on the drawbacks of cost-benefit analysis, particularly as applied by OIRA when it reviews major rulemakings. But what if OIRA's reach were extended even further, to independent agencies? The following is a cross-post with CPRBlog: Keeping the Independent Agencies Independent.
The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA. This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify. But even more problematic is where S. 3468 treads: the domain of independent agencies. This development calls for thoughtful attention to the reasons for independence in the first place.
The fundamental difference between executive and independent agencies lies in the degree to which each is insulated from presidential control. For example, executive agencies are typically headed by individuals who serve at the will of the President—but independent agencies are governed by multi-member commissions who are removable only for cause. While executive heads are usually members of the President’s party and serve for indefinite terms, independent commissioners in most cases must come from both parties and have fixed terms that extend beyond a single administration.
It is worth emphasizing that the choice whether to create an executive or independent agency lies with Congress. By choosing an independent form, Congress puts in place a structure meant to insulate those agencies—at least somewhat—from political pressures. How do independent agencies achieve this goal? There are many ways, but here I’ll mention those most salient to S. 3468. First, by being shielded from the threat of removal, independent commissioners can make policies that might conflict with those of the White House but that are more consistent with those of Congress. Second, independent agencies are meant to be experts in their regulatory field. They typically have a narrower scope of responsibility than do executive agencies and can thereby focus their attention on developing specialized knowledge about their regulated industries. Certainly, expertise does not provide a foolproof shield against politics—a point I and others have frequently made—but the possibility of providing at least some insulation is a goal well worth pursuing.
In addition, the multi-member structure of many independent agencies serves deliberative values; decisions are less likely to amplify short-term political views when groups comprised of different viewpoints must make ultimate decisions. The bipartisan, multi-member mix also promotes long-term stability and helps insulate these agencies—again, at least more than executive agencies—from interest-group capture.
Even though independent agencies don’t function as perfectly as we might like, putting their rulemakings through OIRA review would undercut the ultimate goal of shielding them from politics. As the President himself has acknowledged, OIRA review is the key means by which the President directs regulatory policy. For Congress to suggest this type of review for agencies that Congress itself meant to protect from presidential policy is both illogical and short-sighted.
Independent agencies are not lacking for checks on their exercises of discretion. Their mandates are frequently extraordinarily precise, both substantively and procedurally. Further, independent agencies are subject to the requirements of the Administrative Procedure Act, and courts make no distinctions between agency types when reviewing exercises of expert discretion. One of the only procedural distinctions between types of agencies, therefore, is that independent agencies do not undergo OIRA review. To remove that distinction—a last bulwark against politics—would be to lose an important source of experimentation, comparison, and diversity in the regulatory process.
Wednesday, September 12, 2012
This is the sixth in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products. This more reflective essay, mostly written on my last day in China, grew so long that I have decided to publish it in several parts, beginning with today’s thoughts about the different relationships that average Americans and Chinese maintain with the natural world.
In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy. With the help of so many patient teachers here (most of them my own students), I’ve come to understand some deep cultural differences corresponding to many of the environmental experiences that I’ve been writing about in this series. At bottom, they reflect important underlying differences in environmental philosophy—differences, at least, between the average Chinese approach and that which underlies much environmental governance in the U.S. (and other like systems, but in drawing fraught comparisons, I’ll stick to what I know best).
These issues are hard to talk about, because they go to the heart of the cultural differences that one must be exquisitely careful about describing, let alone evaluating. Every culture has elements that are puzzling, even troubling to those outside it. (To test this, ask virtually any non-American what they think about our Second Amendment—or for that matter, our First!) Yet as dangerous as such discussions always threaten to be, I brave it because these cultural differences relate so directly to the challenges of international (and even domestic) environmental law that it seems critical to at least broach the subject.
Acknowledging these difficulties, I begin with the humble qualification that my observations are inevitably, hopelessly entangled with my own cultural vantage point. My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history. My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations.
But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here. They contrast environmental perspectives as revealed through our different relationships with nature, conservation and stewardship obligations, and scarcity—concluding with some thoughts about ancient Chinese philosophical traditions. This first essay addresses the surprisingly different qualities of our respective relationships with nature (conceding with William Cronon that the very concept is something of a cultural construct), and how that might impact our respective visions of environmental law.
The average Chinese environmental perspective contrasts with American counterparts in so many ways, and at seemingly every level—whether comparing Chinese undergraduates with American college students, farmers with farmers, bureaucrats with bureaucrats, or grandmothers with
grandmothers. So it’s only natural that we’re not going to see things exactly the same way when it comes to nature itself. We all like pandas, and we all agree that our children should not be poisoned by toxic chemicals carelessly released into the environment. But beyond that—what are the contours of our ethical relationships with that environment, and to what extent might it inform natural resource management choices?
From the modern U.S. perspective, American natural resources laws mostly attempt to balance competing demands for scarce resources, including public land and water resources that are simultaneously valuable for extractive, recreational, aesthetic, and intrinsic reasons. We came to this idea of balance after the first half of American history, during which our policies erred squarely on the side of extraction and reclamation. But today, this idea is the essence of our Multiple-Use-Sustained-Yield approaches in the National Forest and BLM lands, and it is even reflected in the tension between the occasionally competing mandates to provide for the enjoyment of our National Parks by both present recreationalists and future generations.
We seek balance, but that balance is constantly contested because Americans divide over when to err on the side of extraction or preservation, whether to proceed from an anthropocentric or biocentric management ethic, and when to prioritize present or future needs. Today’s debate features environmentalists who favor preservation and lower-impact recreation versus “wise-use” advocates who favor freer extraction and recreation policies. Yet the same conflicts have played out for at least the last 150 years of U.S. natural resources policy, since the early contests between John Muir, progenitor of the National Park Service’s preservation mandate, and Gifford Pinchot, architect of the U.S. Forest Service’s multiple use mandate.
Even so, while today’s John Muirs and Gifford Pinchots may disagree on the precise balance, most find common ground in the belief that we ought to protect at least some natural areas from as much human intervention as possible, in at least some circumstances. They may come to this shared value for very different reasons, and they will often choose different ways of enjoying that wilderness. But as a former U.S. Forest Service ranger east of Yosemite National Park, I never once met a Sierra Club hiker, four-wheeling rancher, Audubon Society birder, or Ducks Unlimited hunter who didn’t sing the praises of their respective pilgrimages to the backcountry, where they found communion with their respective ideal visions of the natural world.
This regard for (relatively) unmediated nature was the intuition behind the U.S. National Park system, by which we purposefully set aside remarkable natural areas like Yosemite and Yellowstone from further human modification. Here, American public policy proceeds from a generally shared conviction that the best in nature is somehow at its best when it is left alone. We admittedly transform nature for countless economic reasons elsewhere, but we value at least some left unchanged (a belief affirmed even more forcefully by the Wilderness Act of 1964). Flawed though this conviction may be in modern times—when even Arctic ice is contaminated with the chemical residues of industrial development—it runs so deep in American cultural consciousness that our National Parks remain a centerpiece of family recreation, a visual representation of pride in country, and a psychological trope exploited for selling things as ironic as sport utility vehicles.
To be sure, most Americans are proud of such public works accomplishments as Hoover Dam, the Erie Canal, and interstate highway system. They form the backbone of national infrastructure that enabled our own economic development to the point where many families can afford that iconic road-trip to visit the National Parks. But as proud (and utterly dependent) as we are on the national highway system, hopelessly romantic Americans are generally even prouder of those treasures in our National Park System that seem to tell us something about who we are as a nation. After all, there are roads all over the world! But there is only one Grand Canyon.
Most modern Chinese see the human relationship with nature very differently, and from the bottom up. Traditional Chinese landscape paintings (of stunning natural vistas with tiny people in the
periphery) seem to pay homage to a natural order in which in which human beings play a proportionately small role. There may have been a time in Chinese history where that reflected cultural ideals, and there may be parts of rural China where this still feels true. But today, in both government policy and popular consciousness, the balance appears reversed. By mechanisms cultural and political, the traditional Chinese reverence for the integrity of natural systems has waned, ironically just as Americans were “finding religion” in nature. Americans went from an early ethos of ruthlessly bending nature to our will—for example, taming mighty rivers and “reclaiming” the desert through massive dam and irrigation projects—to a modern turnaround in which we are now dismantling the very same dams to return ecological systems to a more natural state. The Chinese, perhaps, have been on an opposite trajectory.
Just as in the U.S., Chinese natural resources management policy seeks to balance many competing interests, and with perhaps even greater urgency, given the continuing crisis of rural poverty. After all, the Three Gorges Dam, though environmentally controversial, was designed to bring electricity and flood relief to tens of millions of people, many without other means. In contrast to U.S. policy, however, the consideration of John Muir-style preservation—whether for anthropocentric or biocentric reasons—ranks low, if at all, on the scales. In fact, my Chinese Natural Resources Law students were baffled by the very idea of biocentric environmental ethics, in which nature is considered to have value independent of direct human needs. To be sure, many Americans are equally utilitarian, but they tend to see the biocentric viewpoint as romantic or idealistic, even if wrongheaded. For my Chinese students, it is simply incomprehensible—as in, hard to even grasp what that could possibly mean. But even from the vantage point of anthropocentric, utilitarian values—the ideal that nature is valuable because people derive benefit from it—preservation ranks low in the national interest.
Again, part of the reason for this doubtlessly comes from the pressure of managing such an immense population on such a comparatively small chunk of land. After all, the vast majority of China’s 1.4 billion people live only on the eastern and central part of the nation’s overall land area, which is comparable to, say, the eastern half of the United States. The Sichuan Basin, comparable in size to the state of Michigan, is home to some 100 million people. The North China Plain, including the Shandong Peninsula where we have lived this past year, is about the size of Texas but home to more than the entire U.S. population. This kind of population density understandably changes the calculus in allocating all scarce natural resources, including physical space. Most Chinese would happily trade wild open space for new housing developments, and usually out of sheer necessity.
Still, China doesn’t exactly lack open space: the western mountains and deserts that constitute half of China’s territory are home to only 6% of the population. And though more of China is more densely populated than the U.S., the population density of New York City ranks up there with Beijing, and many native New Yorkers (myself among them) still crave wilderness. But by and large, most Chinese people don’t. Even though there is a burgeoning domestic tourist industry to serve China’s burgeoning middle class, ecotourism of the American family-camping and river-rafting variety isn’t really part of it. Development pressures aside, there’s something different in the human relationship with nature at the cultural level, reflected in recreational preferences as well as management policy.
Of course, the average American didn’t always love wilderness—for the first hundred or so years of American history, western settlers cursed the wilderness for threatening their very survival. New Yorkers like me only developed our taste for wilderness when our safety within well-developed cities had become so secure that civilization itself grew boring and it was the wilderness—an increasingly scarce resource—that seemed novel. Indigenous Americans have long enjoyed a very different relationship with nature, and later-comers have learned from their example over our last hundred years together. But Chinese civilization had made its peace with the natural world for thousands of years before American settlers cursed and then longed for their wilderness. It was just, in some regards, a different kind of peace.
Chinese culture has long celebrated the natural world in achingly beautiful paintings, poetry, and the placement of simple pagodas from which to contemplate the splendor of the natural world. But in contrast to modern American ideals, the Chinese have also long celebrated their extraordinary ability to manipulate nature as needed to suit human ends, both functional and aesthetic. They take great cultural pride in their proven ability to remake the natural world in ways that have offered tangible benefits to their people over the eons. The term for this pride that I learned while touring the mountains and deserts of the west roughly translates to “Man-Made China.” In many cases, the Chinese have remade nature to survive and even thrive within the most challenging of natural environments. As I described in an earlier installment, the native Xinjiangnese did this in creating thousands of kilometers of the Turpan Karez’s underground water channels over thousands of years, each dug by hand to keep mountain streams from evaporating before reaching cropland eeked out of the Takla Makan desert. The fifty-year North-South Water Project and the Three Gorges Dam, the largest hydroelectric project in the world (with power generating capacity some eleven times that of the Hoover Dam), reflect similar modern-day ambitions.
Another ancient example is the Dujiangyan Irrigation System west of Chengdu, one of the three great hydraulic engineering projects of ancient China. More than two thousand years ago, civic engineers there calculated how to seasonally split the Minjiang River just so—in a way that provides both flood relief to the lands annually inundated by spring meltwater on one side and irrigation to the lands on the other side that would then become the breadbasket of China. Now celebrated as a U.N. World Heritage Site, the project works flawlessly to this day, using “natural topographic and hydrological features to solve problems of diverting water for irrigation, draining sediment, flood control, and flow control without the use of dams,” leaving the channel open for commercially and strategically important navigation. Americans and others have also learned to alter nature as needed for the purposes of human safety and economic development—but in China, projects like Dujiangyan hold a place of pride in the Chinese heart that roughly corresponds with the place the Grand Canyon occupies in the American psyche.
Related to national pride in Man-Made China is the strong preference that most Chinese hold for managed nature over pristine wilderness. You can see it in the stunningly beautiful Chinese gardens of sculpted trees, flower beds, carefully placed rocks (often imported from great distances), usually permeated by a carefully designed creek leading to a pond improbably stocked with huge, crimson koi. These are the places where people go to enjoy nature, but like (a much better version of) an English Garden, they are enjoyed as a work of human-mediated art. Just as nature-enthusiasts in the U.S. might go for a day hike to watch birds in the wild, Chinese nature enthusiasts go to a managed garden to “shang hua,” or appreciate the carefully groomed flowers. Early American colonists and their Europeans forbearers shared a similar regard for pastoral version of nature, cultivated in farms and gardens. But together with Thoreau and the Transcendentalists, Aldo Leopold and the land ethicists, and even through the crossfire between John Muir and Gifford Pinchot, many Americans developed something of a “back to nature” idealism—reflected in our shared love of the National Parks—that most Chinese don’t share.
In fact, the Chinese preference for heavily mediated nature extends even to their own national parks. Even in magnificent natural areas that have been protected as parks, natural wonders are improved upon. I learned this most poignantly while visiting Tian Shan Tianchi, or “Heavenly Lake of the Celestial Mountains”—a high alpine lake nestled among the Tian Shan mountains in northwest China. I had first learned of the place on my first day teaching Natural Resources Law in Shandong, when I asked my students if there was a Chinese analog to the American Arctic National Wildlife Refuge—a famous but remote wilderness that all would know of but few would ever visit. They described this place in Xinjiang Province, and I was thrilled to be able to visit it while later lecturing at a university in nearby Urumqi.
Like an American National Park, the site was protected from development in a region rich with extractable resources, and you could enter only in an approved guided tour-bus that crept up the mountains alongside the river draining the lake. But unlike an American National Park, the once wild mountain river had been terraced into a series of flat concrete pools designed to spread the water out and slow it down as it comes down the mountainside. It was lovely, in that Chinese garden way, though it had nothing to do with the mountain stream hydrology that I had expected to see. (Though it is exactly what I should have expected, having seen similar things at many other Chinese parks.)
At the top, the lake itself was stunning—surrounded by snow-covered peaks and passes reminiscent of the Swiss Alps. That is, except for the crackling speakers—poorly camouflaged as tree stumps and boulders—that lined the paved trail every few feet, piping in music to complete the experience. And they were not playing a mountain flute, erhu, or some other kind of peaceful traditional Chinese music. As I live and breathe, what I heard as I summited the Heavenly Lake of the Celestial Mountains was Michael Jackson. “Bad,” I believe. Followed by Abba. (Which also shouldn’t have surprised me too much, as audio-enhancement is fairly common among nature parks here.)
To enjoy the area in the absence of Abba, I asked the park guide where to find a hiking trail around the lake that I had read about online—but she looked at me blankly. There is no trail around the lake, she insisted, and she’d been giving tours here for five years. I would later confirm that the trail really did exist, but she probably didn’t know about it because most Chinese visitors never use it. It’s just not part of what they want from their encounters with wilderness. Perhaps reflecting this sentiment is the adjacent photograph of an elaborate, wood-carved sign posted conspicuously along the lakeshore: "Civilization is the Most Beautiful Scenery."
Of course, this is a generalization from which there countless exceptions, and I've been the fortunate beneficiary of wisdom and company from many Qingdaonese who have introduced me to remarkable features of the Lao Shan landscape. But I've been surprised to discover the more general indifference to wilderness experiences again and again while traveling the country. Most of the time, the only information I can find about local trails comes from foreign tourists and the website instructions they leave behind. My family once roamed the southwestern-most part of the country bordering Myanmar (Burma) for days, despairing for a simple walk into the surrounding rainforest. We were repeatedly told by our professional Chinese guides—hired through local contacts by a Chinese student who accompanied us—that what we were asking for was impossible, that there simply were no trails. But on our last day, we met a young pair of traveling Germans who directed us to an expat coffeehouse run by a Frenchman, who showered us with maps of exquisite routes that it was now too late for us to attempt.
Learning from that mistake, I later used the Internet to research a spectacular trail alongside a majestic mountain pass in northern Yunnan Province, at around 9,000’ along the upper reaches of the Yangtze River near the border with Tibet. Although I downloaded a hand-penned map of the trail, our local Chinese guide (seemingly genuinely) knew nothing about it. I finally found a guesthouse whose operators knew of the nearby trail, though they warned that only sheepherders and Western tourists used it. They were right, even though the incredible trail lay at the foot of the Snow Dragon Jade Mountain and within the Leaping Tiger Gorge of the Yangtze, some of China’s most heavily domestically-touristed areas. As long as I live, I will never forget that hike. But as far as I can tell, most visiting Chinese will never take it.
I once took some environmental law students on a modest hike in a river canyon—the first time in their lives they had ever gone “hiking.” Managing unsecure footing down a dirt trail turned out to be a challengingly unfamiliar physical skill, and even the word was confusing to translate. The closest Chinese word would be “pa-shan,” which means to climb a mountain. But in China, most mountains are climbed on paved trails and stone staircases. In fact, it’s hard to find a mountain of repute that is not adorned with a stone staircase from base to summit. When I first arrived in Qingdao, I was delighted to discover that the small mountain behind my neighborhood didn’t have one. But in an effort to improve public enjoyment, local workers later began hauling concrete slabs up its steep flanks with tiny bulldozers, and by the time I left, it too could be summited in heels and flip-flops. This saddened a few Western language teachers in the area, but our Chinese neighbors were mostly happy to see the progress.
As an American in China, it’s been hard to separate myself from my own cultural bias in favor of unmediated wilderness. I long for earthen trails, and not for piped-in music. Still, it’s impossible to deny the accomplishment of the ancient parting of the Minjiang River at Dujiangyan, saving countless people from the misery of annual flooding while saving countless others from starvation. Mountain staircases enable young and old Chinese to climb them in good health, without fear of breaking an ankle or a hip on a rugged trail. And they often lead to spectacular temples and contemplative pagodas nestled among the hills, a classical and undeniably beautiful feature of traditional Chinese culture. Nevertheless, I wonder how this cultural difference may bear on environmental public policy choices in a way that may be confusing to westerners unfamiliar with it. For example, ambitious geo-engineering projects that might give pause to many Americans will seem like nothing more than the logical next step of civil engineering to most Chinese...
[To be continued in the next installment, in which I’ll engage further differences in our approaches to conservation, stewardship, and scarcity.]
Tuesday, September 11, 2012
A couple years ago, through my research on the EU Emissions Trading Scheme and the California greenhouse gas cap-and-trade program, I became interested in the way that EU and California verify the emissions data they receive from emitters. Both programs require emitters to contract with private governmentally-approved third parties to review their emissions report and submit a determination to the government as to whether it is accurate and otherwise in conformity with the law. Given everything I already knew about incomplete compliance data and weakness of enforcement under many environmental regulatory statutes, I found this innovation very interesting, and I published an article about it: Regulation by Third-Party Verification, 53 B.C. L. Rev. 1 (2012).
It seems like the US EPA is also interested. It recently sent around a Call for Papers on Next Generation Compliance (see below). Paper proposals are due by September 24, 2012 for a “Workshop for Researchers and Practitioners” on December 11-12, 2012 in Washington D.C. Other workshop sponsors include Environmental Law Institute, George Washington Law, Berkeley Law, and Berkeley’s Goldman School of Public Policy.
- Lesley McAllister
We invite you to consider participating in a workshop on “Next Generation Environmental Compliance.” The workshop will explore ways regulations can be designed and implemented to achieve high compliance without relying on extensive government site inspection and enforcement actions. Academics and practitioners will discuss the latest research, theory, evaluation, policy, and best practices for creating effective regulations that result in high compliance.
We are inviting experts to submit abstracts of papers or outlines of workshop presentations for consideration that they would present at the workshop by no later than September 24, 2012. Submissions may be based on recently completed research or papers, or new ideas for research that could advance Next Generation Environmental Compliance.
Participants selected to present at the workshop may receive a speaker fee. We also expect to publish the papers and insights from the workshop. Complete details are provided in the attached “call for papers.”
We hope that you will consider sending an abstract or other material to be considered for this important workshop.
Thank you. We look forward to hearing from you.
The co-sponsors of the Next Generation Environmental Compliance Workshop:
• The George Washington University, School of Law
• University of California, Berkeley Law, Center for Law, Energy & the Environment
• University of California, Berkeley, Goldman School of Public Policy, Center for Environmental Public Policy
• The Environmental Law Institute
• US Environmental Protection Agency, Office of Enforcement and Compliance Assurance
US Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Monday, September 10, 2012
However, the fact that it takes 17 days of protest by villagers standing in water signals a failure in the legal process. Despite extensive Supreme Court intervention, the procedure for at least ensuring that villagers will be compensated is apparently not in place. Perhaps, a more structure legislation would be a better approach to ensure that villagers are provided their fair compensation, not only for the lost land, but also for lost economic opportunities.
This week residents living near the contentious nuclear power plant in Kudankulam, India, organized another protest. This time the protestors opposed clearance given to initial fuel loading as another step towards operationalizing the plant.
Here is the problem: the Department of Atomic Energy (DAE) has published its findings regarding the safety of the plants, which the Madras High Court decided was adequate when it dismissed a petition filed by those opposed to the nuclear power plant. Further, the protestors were not given the permission to organize any more protests.
Yet, several villagers --reported to be between 1000 and 5000 in number--decided to organize a protest around the power plant. The police reportedly released tear gas to disperse the protestors, and at least one protestor was fatally shot.
What is the way forward?
The safety plan released by the DAE may well be sound, even though it is not clear for how long the spent fuel will be stored at the Kudankulam site or where it will be reprocessed. The Madras High Court's decision should perhaps deserve respect as the highest state court. The problem, however, is that sometimes formal compliance may not be sufficient.
At present, government officials continue to blame foreign NGOs for the protests. This, however, is fruitless. It does not solve the problem, that is, can those who have the most stake in the safety of the plant be convinced of its safety. What the Indian government needs to do now is restore faith in the safety process . After all, for residents much more is at stake than energy security or formal complaince with the laws. By persuading residents about the reliability of the safety plans, the Indian government can increase the legitimacy of its laws.
One way to achieve this is to engage in an extensive public hearing process. Further, the government should publish its findings, public comments, and provide its response to the public comments before finalizing the report. A process that engages stakeholders is critical and the money and time spent on such a transparent process may ultimately pay off.