Monday, November 3, 2014
Responding to the IPCC Fifth Assessment during the Month of November (from the Environmental Law Collaborative)
As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.
November 3, 2014 in Biodiversity, Climate Change, Current Affairs, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Sustainability, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Thursday, April 24, 2014
China's Amendments to its Environmental Protection Law: Can it really lift the curse of Midas Touch?
News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.
Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.
Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “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…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Wednesday, March 27, 2013
This is a post-script to my 2012 series about my environmental experiences living in China as a visiting American environmental law professor. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, a review of Chinese food and consumer product safety, differing Chinese and American conceptions of the human relationship to nature, cultural approaches to conservation, stewardship, and scarcity, and parting musings about the philosophical roots of some of these differences and the processes of cultural change.)
My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid. As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific. Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home. This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity.
(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)
The Long Journey Home Begins. In departing Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland. It was a long trip, but the transitioning away from China began immediately. Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed. Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down. Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis. We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor. We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.
And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy.
On our second or day back, I went grocery shopping with my four-year old son. I was mentally prepared for how psychologically fraught this might be. I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time. I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption. I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused. Everything was so sterilized, and there was just so much of it all. No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything.
I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands). It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.
I shut my eyes, centered my breathing, and considered how much we wanted those strawberries. And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping. Like I had never left. In fact, I knew exactly what to do. I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter. Suddenly, it wasn’t so strange after all.
Which became its own haunting experience: was all this excess really my personal norm?? So help me, it was. This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore. But why didn’t they know how abnormal it really was? Don’t they know what the rest of the world eats and where they find it? That most people alive today (or at any time in history) could never imagine a place like this? Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all? Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?
Strangers in Our Own Land. Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing.
It was hard to get over how clean the world suddenly seemed. Like a movie set, because it couldn’t really possibly be that clean. The streets and houses are clean. The air is brilliant; sweeter than I had imagined. Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight. We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure. Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates. But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.
There is not so much litter here in the U.S., and not so much dust. We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China. (No exaggeration: our East China home dusted in the morning was saturated again by evening. But then again, we all know what dust is mostly made of—dead skin cells. There are more than a billion people crowded along China’s East Coast; you can do the math.) Nature in the U.S. is spectacular. The grass really is greener; the sky improbably blue. The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it. And yet we also have to remember not to look directly at the sun, as we so often could in China.
This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky. But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood! We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school). And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance.
My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling. But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed. At first, the teachers didn’t know what to do with his hesitation to act independently. “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!” After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition. And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.
Cultural Pride and Cultural Shame. Public safety and sanitation is different here. It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along. I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China. I no longer worry about giving my child medicine when he is sick. That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown. I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.
But there are also moments of immense cultural pride. I cannot boast enough about American tap water, with which we are all hopelessly in love. Drinking directly from the sink never gets old, and Oregon water is especially heavenly. My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried. We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water. Nothing! (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)
Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water. It feels excessively wasteful. It boggles my mind to see people using it to sprinkler lawns and wash cars. “No, no,” I think, “are you crazy? You could drink that!” But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash. Which is obviously insane, especially in the arid West. I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore.
At Home in America. Our neighborhood is lovely with trees and grass and wildlife, but strange with people. It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car. If you don’t walk a dog, it’s easy to never see neighbors face to face. In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers. Public spaces are alive with community in China, but here, we are much more isolated. We live close to our neighbors, but with little random interaction. With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience.
Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points. Public spaces are so empty by comparison. The country is so empty, with vast unpopulated tracts of land. “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind. One student has his own room for the first time in his life—and he hates it. There is nobody to talk to. Nobody to care if you are even there or not.
While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first. But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore. A little dirt won’t hurt, we tell ourselves; how bad could that floor really be? (There’s barely even any dust!) And for that matter, why bother with organic? Why sweat the preservatives? After our year abroad, we have been fully absolved of the illusion that our bodies are temples.
But our house—goodness gracious—is ridiculously, shamefully big. I was deeply embarrassed when my Chinese students came to visit us in December. I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays. But at the same time, I cringed at the thought of showing them where I live. I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives. True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.
That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it. It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone. I returned from China with bursitis in my hips because Chinese beds are so hard. But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests. There is wall-to-wall carpeting, with padding beneath. On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable. Embarrassingly, my body wilted into the cushions like a crying child to her mother. My fallen arches stopped screaming about the constant concrete floor underfoot.
Of course, this too is purely a matter of culture. One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft. Everything in the US is so unbearably soft, he complained—even the floors are soft! “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.
Freedoms for Granted. The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet. Tiananmen. Terrorism. When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration. What our parents tried to teach us about our roles in the world.
My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself. In the wake of Tiananmen, these were survival instructions. They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background. Then they asked me what my parents taught me while I was growing up. I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary. We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.
In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague. I could write freely. I didn’t have to be purposely ambiguous about connecting names with events or statements. I could make full sentences rather than mnemonics. For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing. I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.
I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home. After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely. My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email. But now, nothing I said could hurt anyone anymore. I could relax! But no, I couldn’t relax. It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.
Between Worlds. So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left. Supermarkets aside, it was remarkably easy to rejoin American culture. Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules). I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time. I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away. I knew how to operate American culture like an expert. It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside.
Yet reverse culture shock sneaks up on you. A few weeks after we got back, I fell into what I can only describe as a brief but intense depression. I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to. I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer. Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home!
But these were guilty pleasures, most, because of course life is nicer in the first world. Back now to that dizzy place. How to feel about all this? What about those we left behind? So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind.
Then again, I know I’m not really leaving it all behind. Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now.
Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed. As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college. As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year. He was so proud to be Chinese again, if only for the day. The next day, he was happy to be an American again, romping freely around the neighborhood playground. So yes, he is a clearly a child of two worlds now.
And in some smaller way, I guess I am too.
Thursday, November 8, 2012
China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity
This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance. (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.) The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity. The final installation will conclude with thoughts about some ancient philosophical roots of these differences.
I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series. I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience. Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards. So I offered the important qualification, which I share here once again, 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.
From there, I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development.
Conservation. Take our shared goal of conserving natural resources. Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S. (Then again, China also built a coal-fired power plant a week in recent years, or more.) But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation.
On the example of climate policy, the American challenge has been achieving a consensus for rational policy. Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies. For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress).
Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness. The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation. (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009. [Photo courtesy of The Chicago Dope blog.]) Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).
In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation. In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues. In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement. Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory). Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas. Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels).
Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans. China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit. Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives. From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it).
In China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large. The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions). In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao). Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum.
It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising. Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes. And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash. There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper). And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc. There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.
Stewardship. Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives. A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives. But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance. It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe. Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors. The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.
Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty. Shoes are often left at the front door. Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like. But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold. This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.
Crossing the outer threshold onto the street reveals an even more dramatic difference. In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets but mountain trails and otherwise beautiful beaches. Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem. Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods. A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles.
Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning. I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors. People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job. But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes. And there is no street-cleaner for the narrower village streets, forest parks, or beaches.
Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens. Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter. The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day.
Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it. In many places, it’s a culturally permissible thing to do. We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there. Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often. Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S. But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.
Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement. But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message. Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training. Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers. In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 years. But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits. Which leads to different kinds of environmental problems.
I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate. Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down. I’ve seen parents allow their children to relieve themselves into large potted plants at airports. I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid. It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing. A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs.
With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place. The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what. A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes. I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them. Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched. Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth. By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).
Here’s the thing. If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management? If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air?
The potential implications for environmental law are obvious. Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge. Professional polluters aren’t just doing it because it’s cheaper than the alternative. They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.
Scarcity. The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy. Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development.
Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that. My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources. Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time. Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones?
In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction. One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture. Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in. Using tweezers and tiny metallic wire, he got it working again. The man knew how to fix virtually anything—because he had to. At the time, there was no alternative but to fix things, over and over again. But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way. For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely.
Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China. At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”). But I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste. Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment. They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.
The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West. One possible example that often confuses foreign visitors is the way that Chinese tend not to queue. There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one. There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter. Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane. My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference. (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…)
Why no tradition of lining up? One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need. This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas. That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources. So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…
[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]
November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2)
Thursday, October 25, 2012
On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:
This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities. At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.
You can contact me if you have any questions. And I hope to see you in Bristol!
- Michael Burger
Monday, September 17, 2012
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”
We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted. We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced into the stalled traffic and began turning cartwheels in hopes of a small remuneration. “Yes, I know about that,” the driver said. “Too much warming. Too much heat.” “But do you worry about it?” “Me—no.” He fired the engine and frowned slightly. “You know, India has too much noise!” he shouted. “And too many dogs! Too many everything.”
I continue to grill my Indian acquaintances on climate change, but I’ve now found a more scientific source of information. The Yale Project on Climate Change Communication released a report last month, “Climate Change in the Indian Mind,” that takes a broad look at climate change awareness and attitudes in modern India. Based on a survey of 4,035 Indians—both urban and rural, from a range of income and education levels—the report presents an encouraging view of the world’s biggest and most perplexing environmental challenge in the world’s biggest and most perplexing representative democracy.
Like the rickshaw wallah in Delhi, most Indians are aware of changing trends in the climate. According to the report:
Only 7 percent of respondents said they know “a lot” about global warming, while 41 percent had never heard of it or said, “I don’t know.” However, after hearing a short definition of global warming, 72 percent said they believe global warming is happening, 56 percent said it is caused mostly by human activities, 50 percent said they have already personally experienced the effects, and 61 percent said they are worried about it.
(Compare that to public opinion the United States. According to a recent Gallup poll, only 52% of Americans say the effects of climate change are now occurring. But ask about the cause, and one finds numbers similar to those in India: 53% percent of Americans, according to Gallup, attribute global warming to human activity.)
But, unlike the rickshaw wallah, most Indians are worried enough about global warming that they want their government to address the problem.
Here’s another excerpt from the report’s “Highlights”:
• Millions of Indians are observing changes in their local rainfall, temperatures, and weather, report more frequent droughts and floods, and a more unpredictable monsoon. A majority of respondents said their own household’s drinking water and food supply, health, and income are vulnerable to a severe drought or flood and that it would take them months to years to recover.
• 54 percent said that India should be making a large or moderate-scale effort to reduce global warming, even if it has large or moderate economic costs.
• Majorities favored a variety of policies to waste less fuel, water, and energy, even if this increased costs.
• 70 percent favored a national program to teach Indians about global warming.
This glimpse into Indian minds must come with caveats. Like any survey, it captures only a moment in time. Plus, it’s easier to favor conservation policies when you don’t know exactly who would bear the cost. Even with a firm public commitment to action, the translation from public will to government policy is notoriously complicated in India. (Or, for that matter, in the United States.)
But the survey offers a ray of hope. India’s ambition of becoming a true global power will depend on its ability to harness green energy and cope with higher temperatures, bigger rains, and longer droughts. In a general way, Indians know this. But ambition means nothing without political leadership. And that is one thing in India that is not in oversupply.
Robert R.M. Verchick is a 2012-2013 Fulbright-Nehru Research Scholar and holds the Gauthier ~ St. Martin Chair in Environmental Law at Loyola University New Orleans
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.]
Thursday, August 30, 2012
NEW DELHI — Here’s what the monsoon season looks like in India. This summer, the northern states have been lashed with rain. In the northeastern state of Assam, July rains swamped thousands of homes, killing 65 residents. Floods and mudslides in northeast India sent nearly 6 million people heading for the hills in search of temporary housing (a tarp, a corrugated roof) and government aid (when they can get it). In New Delhi, the monsoon hasn’t caused anything nearly as traumatic. But one cloudburst can easily flood roads and storm canals, sending bubbling streams of grease and sewage across the urban slums.
Haven’t heard about all this? Normally, I wouldn't have either. But this semester I’m living in New Delhi, near one of those storm canals, working as a Fulbright-Nehru Research Scholar affiliated with India’s Centre for Policy Research. My plan is to examine the ways in which Indians are adapting to climate change, at the national, regional, and local levels.
Perhaps no country in the world is as vulnerable on so many fronts to climate change as India. With 7,000 kilometers of coastline, the vast Himalayan glaciers, and nearly 70 million hectares of forests, India is especially vulnerable to a climate trending toward warmer temperatures, erratic precipitation, higher seas, and swifter storms. Then there are India’s enormous cities (home to nearly a third of the population), where all of these trends conspire to threaten public health and safety on a grand scale—portending heat waves, drought, thicker smog layers, coastal storms, and blown-out sewer systems.
Those floods I mentioned earlier are typical of India’s monsoon season—data for this season, in fact, show a monsoon with slightly less total precipitation than normal. But the floods demonstrate the kinds of extreme events that if multiplied in the future will bring even more risk to a fragile country. According to a recent report issued by India’s Ministry of Environment and Forestry, current projections indicate “a 3% to 7% overall increase in all-India summer monsoon rainfall in the 2030’s with respect to the 1970’s.” In contrast, during the winter and pre-summer “dry” season, most regions “are likely to have lower rainfalls.” Such a “barbell effect”—a more extreme wet season joined to a more extreme dry season—could mean trouble for India’s growing cities and struggling rural farmers.
India’s public and private sectors have begun developing adaptation strategies, although most are at the beginning stages. With prodding from the national government, some states are now developing vulnerability assessments and setting priorities. International non-profits like the Rockefeller Foundation are joining with local governments and citizens’ organizations to find better ways to control storm water, irrigate crops, and improve health against the backdrop of a changing climate. Manufacturers, insurance companies, and banks are also examining ways to adapt. This has led to an array of discussions about how public or private initiatives should be used to build resilience in the Indian communities, to make them “climate-ready.” Some of these ideas are particular to India, but many of them will be tested here and exported to the rest of the world, including the United States.
Should rural farmers in India be encouraged to protect against monsoon vagaries by investing in a legalized “weather derivatives” market, like some American hedge funds do? Is there a way that India’s expansive Public Trust Doctrine (inspired by American case law) could be used to protect threatened assets like coastal wetlands and groundwater supplies? Am I nuts to think that a megacity like New Delhi—home to 16 million people, 11 million vehicles, nearly half a million stray dogs, and scores of loitering cows—can coalesce into an environmentally sensible and climate resilient city of the future? Over the coming months, I’ll take on some of these subjects in this blog. I’ll talk with local experts, visit project sites, and venture an assessment or two. As for now, the afternoon thunder is rattling my office window, and I need to find my rubber sandals.
- Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans.
August 30, 2012 in Asia, Climate Change, Current Affairs, Environmental Assessment, Governance/Management, International, Land Use, Law, Sustainability, Water Resources | Permalink | Comments (0) | TrackBack (0)
Friday, August 17, 2012
Following up on Dave's post yesterday, also see this New York Times article on the NRC's new leadership. As reported by the Times, the NRC has suspended some licensing decisions until it can prove that the lack of storage for nuclear waste does not threaten public health and safety (order available here). What exactly is being suspended is of interest: any licensing decisions dependent on the Waste Confidence Decision and Temporary Storage Rule. Of further interest is how this issue was brought to a head--through litigation in the D.C. Circuit. It is fascinating to watch as all the branches play a part in moving the conversation about nuclear energy--and spent nuclear fuel--forward.
Friday, July 20, 2012
In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.
By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid. Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others. Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.
These partnerships reflect the complex way that the Constitution structures federal power, through both specific and open-ended delegations of authority. Specific congressional powers include the authority to coin money, establish post offices, and declare war. More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks. Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority. (Of course, there is some overlap between the two, but that’s another story and a previous blog.)
The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence). Sometimes, Congress just funds state programs that it likes directly. But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children).
In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach. A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law. Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.
Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal. If they don’t like the attached strings, they don’t have to take the money. Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration. In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations. No law has ever run afoul of these broad limits, which have not since been revisited—until now.
In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it. All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms. Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously. But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled. Even though they really wanted out, they claimed, now they were stuck. The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please.
In deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership. Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal. We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy. (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”) Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to. No coercion, no constitutional problem.
But then the decision takes a key turn. What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs. Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive. By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion. To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion. Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics). The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.
Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid. For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.” She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”
On these points, Justice Ginsburg is right. The decision offers no limiting principle for future judges or legislators evaluating coercive offers. “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that. Moreover, the rule is utterly unworkable. No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum). The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge. And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir.
Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership. It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent. But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding). The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes. (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.)
It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way. Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power. But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system. Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse. Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.
Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem. To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership. Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review. But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.
Sunday, July 15, 2012
- Big news on climate change litigation and the public trust doctrine, blogged about right here
- EPA released a draft evaluation of Iowa's NPDES program for CAFOs, available here
- Check here for a thoughtful op-ed about considering a world without coral reefs
- The federal circuit court of appeals awarded damages to nuclear power plant owners that incurred costs for spent nuclear fuel storage
- The Obama Administration released a report on progress and next steps for restoring the Everglades
Friday, July 6, 2012
For those following the Yucca Mountain controversy, nuclear energy policy, and the fascinating administrative law story of the NRC: last week, Allison M. Macfarlane, a geologist who is considered an expert in the back end of the fuel cycle, was approved by the Senate as the new chair of the Commission. She follows Gregory Jaczko, who was instrumental in halting the Yucca Mountain Project and who resigned in May. Any predictions about what the new chair will bring?
Thursday, July 5, 2012
Today I discuss the curious contrast between China’s role as an international and domestic producer of consumer goods, and some of the implications for average Chinese people. (This is the fifth 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, and May’s exploration of water quality issues.)
While preparing for our year in China, we wondered what we should bring with us from home. Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were. It’s true that China produces a lot of the manufactured goods now sold in the U.S. and throughout the world. What’s not true is that they are available for purchase in China. As it turns out, China has two separate manufacturing industries—the factories that produce for export, and those that produce for domestic consumption. In fact, it’s illegal to sell goods produced for export on the domestic market. And while Chinese exports are generally of decent quality, that’s not always the case for products sold in domestic Chinese markets.
Before I say more, it’s important to acknowledge the relationship of this problem to China’s stage of economic development, and the mind-boggling progress it has made over a very short period of time. Just a few decades ago, China was still reeling from the political turmoil of the Cultural Revolution and the chaos of the Great Leap Forward and famine times preceding it. Only after the Deng Xiaoping reforms in 1978 did national priorities shift toward full-speed-ahead economic development. In the thirty years since, the nation’s progress in creating new industry and providing for basic human needs has been astonishing—especially in urban areas, and most markedly in the coastal areas like Shanghai and Shenzhen, or the northern city of Qingdao, where we live. But even though there are some 500 million Chinese now using the Internet, some 170 million of them—more than half the population of the U.S.—still live on only a dollar a day.
Of course, such rapid development has been accompanied by the environmental degradation that I’ve written about in previous posts, just as American industrialization did a century ago. And indeed, when you’re trying to feed 700 million mouths in the underdeveloped countryside, it can be hard to focus on ground-level ozone. Still, people living close to the margin are especially vulnerable to environmental harms from pollution and climate-related disasters. Understanding this, the government has increasingly recognized that ongoing development efforts must be better partnered with effective environmental regulation, evidenced by a steady stream of reports about new environmental goals and sustainability initiatives. As far as I can tell, these are mostly hortatory at the moment, but hey—every environmental movement has to start somewhere, and it’s usually with consciousness-raising.
This is all just to fairly contextualize my observations here that, in addition to better managing pollution, China faces an uphill challenge to better ensure the safety of the products its people come into contact with each day. Product safety is like any other environmental regulation; both rely on state enforced rules to ensure that people are not harmed by toxins or hazards, especially when the harm is of the sort that most people couldn’t reliably identify on their own. And at least generally speaking, the safety and quality of domestically marketed Chinese products leaves a lot to desire.
Americans may recall how this problem reached the export market in 2007, when Chinese toys sold in the U.S. were found to have been produced with lead paint. Teething children, those most vulnerable to neurotoxins, risked exposure when they inevitably gummed or sucked on these toys.
As the parent of new baby at the time, I carefully pulled out all of his new toys that had been made in China, just in case. But now imagine the same kind of problem here in China, in every kind of product line, and with only a fraction of the government regulators available to inspect products for health and safety. You can’t just pull everything out, just in case. There will be nothing left.
In China, the most troubling examples relate to food safety. In recent years, there has been a parade of scandals in which chemical toxins have been found in local meats, vegetables, and other products. The most tragic was the milk scandal of 2008, in which several Chinese babies died and hundreds of thousands were sickened by milk products purposefully contaminated with melamine, an industrial chemical that raises the apparent protein content of watered-down dairy products (and also causes kidney failure). Responsible parties were fired, jailed, and even executed in punishment—but two years later, it was discovered that 170 tons of contaminated formula that was supposed to be destroyed after the scandal was simply repackaged and resold on the domestic market.
I know Chinese parents who will only give their child imported milk, even though it is by far the most expensive item in the family budget—in absolute terms, 400-500% more expensive than the average milk sold in the U.S. (and this purchased by families with a fraction of the average U.S. income.) These frightened parents will carefully scan UHT milk products to make sure that the only Chinese characters appear on stick-on labels—not the original cartons—ensuring that no part of the production process took place here in China. We were taught to do the same on our arrival, and imported milk soon became the most expensive part of our family budget as well.
Baby formula price differences are even more exaggerated—even one can of imported formula can cost as much as a week’s worth of groceries—which is obviously prohibitive for most Chinese families. But this week, the China Daily reported that formula produced by one of China’s biggest dairy manufacturers was pulled from shelves after testing positive for elevated mercury levels. The Yili Industrial Group recalled three series produced between November and May after inspectors discovered high mercury levels, presumed the result of air, water, and soil pollution from coal-fired power plants and industrial and mining projects. Afterward, the government made an emergency announcement that it had tested 715 samples from all infant milk powders on the market, and none showed abnormal mercury content except Yili’s. But note the use of the word “abnormal,” rather than illegal: perhaps the most chilling aspect of the story is that China doesn’t actually have an official safety standard for mercury in milk power.
(Writing on July 4th, it’s a good moment for me to pause and reflect on the many things I am grateful for in my own country. And even with all of its flaws, I’ve never been more grateful for the FDA than I am right now. Let this be yet another post-it to all my fellow-citizens who have come to take our own regulatory state so for granted that they have forgotten what life would actually look like without it.)
China’s regulatory apparatus is struggling to catch up with the herculean pace of its industrial sector, and the gap between them is exposed by these tragic examples in which local people are hurt by the very products they are racing to produce, ever more quickly and inexpensively. The United States has been here before as well, and it may just be a necessary part of the process of economic development. But China is at that stage where its people are beginning to decide that the health and safety of their children is just as important as other aspects of economic development. The bottom line is that too little of what reaches the Chinese consumer is subject to reliable health and safety inspection based on sensible regulatory standards. And we know Chinese producers can do better, because they meet all kinds of health and safety standards when making goods for export!
Because milk is just the tip of this iceberg. Chinese of means are willing to pay extraordinary amounts for all kinds of foreign products—not just food, but also clothing and electronics. This puzzled me at first, until I lived here long enough to witness just how often the things I buy at the local market break, tear, or otherwise self-destruct. From clocks to toothbrushes to ziplock bags—I don’t know how else to say it—the Chinese goods we buy here just here don’t work very well, or very long. Even as I write, I am sweeping away from my son’s mouth the disintegrating pieces of the nice couch that was relatively new when we moved into our apartment last year (and worrying about what may be in it).
I’m no economist, but I can’t help but relate this to the high tariffs the Chinese government adds to imports—the source of so much international tension with economic competitors like the U.S. It’s no wonder the government favors these tariffs: if imports were not made artificially more expensive than they already are, Chinese consumers would prefer them even more strongly to local products. I had a conversation about this once with a student complaining about how expensive American-made clothing was in China (the tariffs make it much more expensive than it would be at home, even in absolute terms). I pointed out that from the perspective of his government, this was a way of accelerating the developing economy by harnessing the enormous purchasing power of China’s emerging consumer class. He responded that, yes, if he were a Chinese official, he would probably do the same thing. But as a Chinese consumer, all he really wanted were some quality shoes.
Of course, a lot of what I am describing is just the reality of life in a developing country, and I certainly don’t want to whine about that too much. My purpose in sharing this is not to complain, but to help those from the developed world understand the full scope of the environmental and economic challenges on the other side. If you were a government official trying to get 150+ million people out of abject poverty, wouldn’t you try to harness the purchasing power of your vast citizenry to do it, free trade notwithstanding?
Regulatory regard for individual health and safety here seems different from the west anyway, reflecting differences both economic and cultural. In flying back to China after lecturing in Vietnam, I was astounded to be fumigated without warning by an aerosolized pesticide sprayed on me in my seat by the Chinese flight attendant. I later learned that it was required by Chinese law, doubtlessly to prevent the spread of serious insect-borne diseases. But my eyes, nose, and throat burned worryingly for the rest of the day, and I wondered how I’d have felt about it had I been pregnant or carrying an infant. In an earlier post, I wrote about our harrowing experience trying to avoid domestic pesticides whose safety we could not ascertain, and I felt affirmed when it was later reported that the government was taking steps to ban twenty commonly used pesticides for reasons of human toxicity.
In another example, my husband—the grandson of a lifelong Milwaukie firefighter—was dismayed that our apartment has barred-in windows and no fire escape, for which I chided him as an over-privileged westerner until I saw ordinary people exploding fireworks just feet from neighboring homes and businesses. The displays are spectacular, but they also cost fingers, lives, and some famously devastating fires. Similarly costly are the traffic-related mortalities that are unfortunately common here. Still, most don’t wear helmets on their motorbikes, and seat belts are purposefully dismantled in most cars because people consider them a nuisance. (In one of our more hilarious cross-cultural moments, we lugged a child car-seat here all the way from the U.S., knowing we’d never find one in China—only to discover it useless because there are no seatbelts to secure it in place!) Traffic lights to help pedestrians cross the street are rare, and even those that exist are of limited value: “don’t walk” means that you will surely be killed if you cross; “walk” means it is now somewhat less likely that you will be killed.
Yet this is only part of the story. Notwithstanding the lack of health and safety standards, there are so many other elements of Chinese culture that are much more committed to human health than western cultures—and especially American culture. Americans may be good at regulating for health and safety, but our lifestyles certainly don’t do much to advance the goal—as documented by our famously expanding waistlines. Healthful living is a huge and important part of Chinese culture, and among its most admirable. Chinese people eat dried fruits and nuts instead of cheese doodles. They rest regularly and sleep well at night. Chinese medicine emphasizes the maintenance of wellness over the post-hoc treatment of disease. Most of all, healthy exercise is a foundation of everyday life.
I don’t just mean that Chinese people are in better shape because fewer have cars and must walk where Americans usually drive, although that’s also true. Here, exercise is a ritual part of daily life—and especially community life—in a way that would be wholly unfamiliar to most Americans. In the morning, people gather for morning exercise in public parks, courtyards, and parking lots, often doing tai chi. Seeing a hundred people spontaneously join in perfect, soundless unity this way is truly one of the most beautiful things I have ever seen. After dinner, families take a ritual “digestive” walk around the neighborhood together. Then begins evening exercise, when people again gather in public areas for a variety of activities. Children play openly while men play team sports. Women regularly gather for a Chinese cultural version of line-dancing, in which they collectively perform a repeating, multi-sided sequence to accompanying music. We were sad to discover very few playgrounds for children—but in perhaps a wiser use of scarce resources, every neighborhood has an exercise parks for adults, with metal equipment to keep people fit and limber, especially as they age. They are frequently used, especially after work, by young and old alike.
So I end this essay where I began, acknowledging the developmental and cultural differences that make my observations here admittedly fraught. Nations struggling to feed rural populations have to be more concerned with crop yields than genetically modified organisms, more concerned with child malnutrition than child obesity rates. Chinese culture protects health in other ways, and it’s understandable that regulatory priorities have focused elsewhere than health and safety to this point—although perhaps the time has come for change. But where American regulations offer models for China, Chinese culture offers lessons for Americans, in exactly those realms we need them most.
Friday, June 22, 2012
Previously, I posted some thoughts on Mingo Logan Coal Co. v. EPA, and in particular, a critique of Judge Jackson's Chevron analysis. For those following the case, it's now on appeal to the D.C. Circuit. EPA's statement of the issues, filed last week, keeps things crisp:
The issue presented is whether Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c), authorizes the United States Environmental Protection Agency to withdraw the specification of a site that is specified for disposal of fill material under a Section 404(a) permit.
EPA's brief is due on July 18.
Thursday, June 7, 2012
Much to my chagrin, a number of people have forwarded me information about a proposal in my new home state: a bill that would require the following of sea-level rise estimates:
"These rates shall only be determined using historical data, and these data shall be limited to the time period following the year 1900. Rates of sea-level rise may be extrapolated linearly to estimate future rates of rise but shall not include scenarios of accelerated rates of sea-level rise."
In the past, I've taken the position that unless there's some special interest at stake (like suspect classifications or fundamental rights), courts ought to be reluctant to interfere when legislatures make policy decisions based on faulty science. On the other hand, a legislature getting science plain wrong might signal no rational basis. Is there room for that analysis here?
At the very least, this is a reminder that courts often provide a check that's too little, too late.
Thursday, May 17, 2012
On behalf of the AALS Section on Property, I am pleased to announce a Call for Papers for the Section's joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA. This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come. It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.” Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.
The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.” Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges. The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law). The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.
Full-time faculty members of AALS member law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the AALS Section on Property, at Shelley.Saxer@pepperdine.edu by June 15, 2012. Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers. Submitting authors will be notified of the results of the selection process by July 1, 2012. To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012. The selected authors will be responsible for paying their annual meeting registration fee and travel expenses. Questions should be directed to Professor Saxer at the above-noted email address.
Special thanks to Professor Saxer, Chair-Elect Hari Osofsky (University of Minnesota Law School), and the other members of the Property Section's executive committee for their efforts in organizing what is sure to be a thought-provoking session.
Tuesday, May 15, 2012
In this post, I take a hiatus from chronicling my adventures in China to reflect on the passing of a giant of the American legal system, a friend of the environmental movement since its early days, and a beacon for my own spirit, Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit. Judge Browning died last week at age 93, and the world is emptier in his wake. A Montana native appointed by President John F. Kennedy, he served over half a century on the Circuit (perhaps the longest serving federal appellate judge in U.S. history), including twelve years as a particularly beloved Chief Judge.
Judge Browning was small in stature and quiet in voice, and his gentle manner moved all with whom he interacted, from members of Congress to the courthouse cleaning staff. In testament to his crusade for justice and kindness through the legal system, the Courthouse where he sat in San Francisco now bears his name. What follows is taken from an essay contributed to a recent issue of the Montana Law Review celebrating his accomplishments (published a few weeks before his death), in which former clerks were asked to describe the man and his influence on their own development within the law:
I began clerking for Judge Browning just as he began his transition from active to senior status after forty years on the bench. I had just graduated from law school, which I had attended after a brief career as a forest ranger near Yosemite National Park. Judge Browning and I shared a love of wilderness and open spaces that somehow bridged his Montana upbringing with mine in New York. Today I am a law professor and at the moment, a Fulbright Scholar in China, studying environmental governance in a system so different from the one in which he first immersed me. To recount the story of his influence since then, there are too many points to begin.
I could share what I learned from him about the art (and artifice) of holding a society together by the rule of law, a lesson especially powerful now that I am living in a society that isn’t.
I could recount the memorable opinions that we worked on. There was the one preserving a modicum of tribal sovereignty despite centuries of the countervailing trend in Federal Indian Law, in which he deftly wielded precedent to both cut and shield, demonstrating the great common law tradition of pursuing justice within consistency. Or the one upholding sensible environmental regulations against an insensible but novel federalism challenge, resolving perplexing questions that kept me alone in chambers with federalism theory texts for unending days and nights (and which would later fuel my own academic research agenda). Or the case in which he found a remedy to assist the septuagenarian inmate at risk of losing nearly all his teeth to callous neglect by prison staff, even after I had resignedly concluded that there was none.
I could recall the simple delights that he took in life, like his ritual mischief of eating a single peanut before reaching the supermarket cash register across from the Pasadena courthouse. He would enjoy the peanut in the aisles but save the empty shell for the cashier, which he politely presented with an impish grin. Then he would insist on jaywalking back to court across the wide boulevard, darting through unsympathetic traffic, even into his 80s.
I could talk about the humble but practical choice to make his San Francisco office not in the hallowed Chief Judge’s central chamber, but in the corner meeting room that was smaller but had better sun (such that generations of clerks would, as I did, crawl out of a law library carrel and into the grandest office we would doubtlessly ever inhabit). I could talk about the treasures and secrets that I found improbably hidden within the very walls of that office, where previous clerks had left them over the years—small notes and totems that would momentarily suspend me in the gossamer margin of present between the ghosts of JRB brethren past and spirits yet to come. It is fitting that the building now bears his name, as well as the spirit of collegiality, wisdom, and mercy that he infused into the conduct of justice within it.
But my favorite "JRB" tale has nothing to do with the Courthouse, or a case, or even the law. It is about the wisdom he shared when he graciously agreed to officiate at my wedding the following year. We were thrilled that he was willing, as he was already the grandfather I never had as an adult, the mentor I never had in law school, and the sage we all hope for in positions of authority. My fiancé regarded him with similar awe and adoration. We could think of no one better to shepherd us into this next, most important phase in our lives.
Judge Browning agreed to marry us, but first we would meet with him to discuss the project. Not of the wedding itself, of course, but the project of our marriage. By that time, he and Mrs. Browning had been married well over half a century, and he clearly had as much wisdom on this issue as anything legal. We met at the Mill Valley Train Station Cafe and dove into the sanctity of the matter over blueberry muffins and hot drinks. He wanted to know why we had chosen to marry, and what we expected of the institution. He needed to know that we were ready, and that we would approach our commitment with the requisite spirit of joy and resolve. This was important to him. He could not preside at a wedding that skewed more toward the flowers and photographs than the sacred bond at its heart. At the end of our meeting, apparently satisfied with our discussion, he gave my husband a wink and the most practical advice of all: “My secret to fifty years of bliss? She is always right!”
There were plenty of flowers and photographs at the wedding, which took place in a Sonoma County garden over Labor Day weekend, with happy friends and relatives gathering from all corners of the country. It made no difference to Judge Browning that my husband’s two mothers had made the same level of commitment we would now undertake. It made no difference that our vows referenced a spirituality that was not his own. It made no difference to him that we had implored him to let us arrange his ride, and so he and Mrs. Browning arrived nail-bitingly late as he slowly but safely navigated to our remote garden setting. The only thing that mattered to Judge Browning was the solemnity and joy of the occasion. He presided with a grace, wisdom, and generosity that helped set transcendental foundations for the marriage he helped bring into being. Through the times of solace and difficulty since, we have always drawn on the strength and faith that he infused into our rite of passage.
In retrospect, Judge Browning’s contributions to our wedding were not that different from those he made to every case that he helped decide, every law clerk that he shepherded, every aspect of justice that he has helped to administer over the years. In each instance, he never lost sight of the ultimate object of his attention: the people before him. Whether interpreting the principles of constitutional federalism, the doctrine of qualified immunity, or the Sherman Antitrust Act, his considerations—though impeccably informed by jurisprudence—always centered on the individuals who would be impacted. The citizens participating in their own governance. The suffering elderly inmate, and his caretakers who will next time rise to the occasion. The consumers that antitrust laws are designed to protect. The bride and groom, immersed in alternating tides of hope and fear.
Judge Browning always saw the human beings at the center of the circle, and he looked them in the eye. He always wielded the judicial power as a tool for realizing justice by advancing human dignity. Because of his example, countless litigants, attorneys, court personnel, and clerks renewed their faith in the legal system, and in a civil society organized around it. I certainly did. This is, perhaps, his greatest gift.
Saturday, May 12, 2012
- It's National Bike Month
- It's also Asthma Awareness Month
- The New York Times reported that Japan has shut down the last of 50 nuclear reactors, leaving the country without nuclear power for the first time in 42 years
- TransCanada submitted a revised application for the Keystone pipeline