Saturday, November 17, 2018

Aggressive Solutions to Disrupt Biodiversity Loss

David Takacs is a Professor at University of California Hastings College of the Law

This is the thirteenth and final essay  in a series  from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Biodiversity is disappearing rapidly, portending grave results not just for nonhuman species (and the populations and individuals that comprise them), but for the functioning ecosystems they constitute, and the human communities that depend on diverse species and thriving ecosystems -- that is to say, all of us. It is perhaps the single greatest problem our species faces. Even though 15% of the Earth’s land has designated formal protection, about 1/3 of that land “is under intense human pressure,” and only ¼ of Earth’s land surface remains free from substantial human impacts.  Such degradation harms the wellbeing of over 3 billion people, and consumes more than 10% of annual global gross product through loss of biodiversity and ecosystem services. Only 13.2% of oceans are “wilderness,” and only 4.9% of those areas are within protected areas.

While cultivation (agriculture, ranching, forestry) and direct exploitation remain the gravest harms to biodiversity, climate change increasingly threatens biodiversity as species are unable to adapt to a rapidly and chaotically changing world: Our current, static methods of conserving species become increasingly inadequate if we do not preserve or restore habitats species will need in a climate-addled future.

We have made strides making laws that constrain humans from wantonly destroying everything.  The need for conservation is a customary norm around the world. Nearly all nations have acceded to the Convention on Biological Diversity, and nearly all nations make some attempts to preserve their genetic heritage, with laws that sustain endangered species and/or protect land important to vital ecosystems and the biodiversity they sustain.

But the cataclysm of species annihilation proceeds apace.  According to the IUCN over 26,000 species are threatened with extinction, including 41% of amphibian species, 24% of mammal species, and 13% of bird species face grave extinction threats.The human population is projected to grow to nine billion by 2050 and likely to eleven billion by 2100, while the average person’s buying power and consumption will grow by 150%.Our laws to conserve are not keeping pace with our drive to destroy.

To stave off a disastrous disruption in human and nonhuman survival, law needs to evolve quickly andradically.  I am not challenging current legal foci on endangered species and protected lands, which, at least, concentrate easy to identify entities (I do know what a bald eagle is, but might have trouble drawing the parameters of a given ecosystem type), and has meant that some species that would otherwise be gone still live alongside us. We can certainly exponentially ramp up what we’ve been doing.  Nor am I advocating one or more of the following legal disruptions as the ones we oughtto choose.   But we do have to rethink, drastically, our current approaches to living alongside biodiversity if we are to have ample biodiversity along which to live, and if human civilization is to be sustained in some recognizable form.

E.O. Wilson and other prominent conservation biologists proposed setting aside “half for nature.” Protected areas do help biodiversity survive. If done smartly -- with careful planning to conserve megadiverse areas that human communities depend upon for local and global ecosystem services -- biologists estimate we could steward 85% of nonhuman species while sustaining the human communities that depend upon them. 

This would also require that the law evolve from a static conception of species and landscapes -- put a fence around an area, manage species in forms and places they’ve long been -- to a more dynamic form grounded in pinpoint adaptive management. We’d need to think about maintaining evolutionary potential outside of formally protected areas so that species could migrate, and develop nimble systems for prioritizing high level protection as areas formally protected for species no longer suit their needs in a changing climate. Law would need to specify performance standards for areas and species of concern, i.e. ecological indicators or benchmarks that must be met, and if not, required pathways to change how we’re doing what we’re doing. Managers would constantly be measuring, monitoring, reporting, and verifying in accordance with the standards. This would also result in greater employment for local people as biodiversity managers, green jobs rooted in caring for the Earth.

Current efforts to conceptualize and operationalize “Nature’s Contributions to People” broaden our notion of “ecosystem services.” Including harder-to-quantify contributions of biodiversity to our well-being may result in being more inclusive in who gets to define what those contributions are and thus what should be preserved. For selected areas, law might provide management autonomy with transfer of property rights for local guardians with a track record of care and stewardship. Law would need to be nimble and place-specific for whom are the legally mandated managers, who monitors that performance standards are being met, and what are the legal consequences for derogation from those standards. 

Concerted, focused, effective efforts to stave off biodiversity loss will likely be very, very expensive.  To afford this, particularly in the global South, (but even in the North, where no country comes close to preserving “half Earth,” or are successfully staunching species loss) would be to take the legal principle of Common but Differentiated Responsibilities  (CBDR) seriously.  Wealthy countries (and individuals) have become wealthy by exploiting lands and species of the South (or by exploiting other citizens) without proper compensation. The same entities have polluted the global atmospheric commons without paying for the externalities of that pollution. Laws implementing CBDR would alleviate the poverty that requires the poor to degrade nonhuman landscapes, and to pay for land and species conservation, including employment for a cadre of conservation professionals and paraprofessionals. All of this could be abetted by negotiating a new multilateral environmental agreement to replace the weak voluntary commitments embedded in the Convention on Biological Diversity, or by amending that agreement to put some teeth into it, including requirements to implement CBDR aggressively.

Law hasbegun, increasingly, to ask those who degrade the global environment to pay for such degradation.  Under the aegis of “polluter pays” principle, REDD+  (Reducing Emissions from Deforestation and forest Degradation) allows greenhouse gas polluters to “offset” their pollution by investing in reforestation or avoiding deforestation, allowing trees to work their photosynthetic magic by sucking up CO2. Biodiversity offsetting takes this logic one step further, by asking developers to offset damage to targeted species or ecosystems by paying others elsewhere to conserve those species.  Both practices are controversial; but to stave off mass extinctions, when done right and on a large, monitored scale, market mechanisms could inject many billions of dollars into government conservation coffers, particularly to incentivize conservation on private lands (where otherwise conservation would not occur). State of the art collaborations between regional planners, social scientists, community groups representing disparate interests, climatologists and conservation biologists could predict where species and ecosystems might likely migrate, where human communities are likely to expand, and to prioritize migration corridors that will allow natural communities to adapt to climate change: Market mechanisms can direct and prioritize conservation in these areas. 

Desperate and wildly ecologically changing times require us to rethink all of our notions of what “belongs” where.  Law could permit and define parameters on aggressive conservation translocation. In a paradigm change from traditional static notions of biodiversity conservation, we might assist colonization andintroduce species to where they’d historically been, exporting species from places where habitat no longer exists or soon will not exist due to changing climates or growing human demands. These can be reintroductions to where species have been and now disappeared, or reinforcement of individuals into existing populations of that species. The “rewilding” movement focuses on top carnivores whose (re)introduction revitalizes ecosystem functions and augments species diversity.   Such programs could also consider introducing species that have not existed in a place, that would be “invasive,” but nonetheless might have some chance of fulfilling ecological roles and adapting to the onslaught of climate change.

And given that we are already radically altering what may exist and where, we might use genetic manipulation or “rescue” for endangered species. Taking this one step further, we could resuscitate extinct species through genetic manipulation.   So, for example organizations like Revive & Restore  seek “de-extinction,” the return of the woolly mammoth, passenger pigeon, and heath hen through tissue biobanking, intense genetic (re)sequencing, and cloning.

A different line of thinking suggests that radical conservation interventions -- put a fence around half the Earth’s surface, manipulate the genetic endowment of life -- are dystopic interventions that totally miss the point that poverty and inequality drive biodiversity loss, and that “put a fence around and protect it” conservation lead to human dislocations, political upheaval, and general human misery.   The only sustainable way to maintain nonhuman communities (and thus human communities) is to change the paradigmatic drive towards ever greater economic growth that inevitably degrades ecological and human capital, and to transfuse wealth from overconsuming rich to disenfranchised poor, North to South. 

The ultimate sustainable route to biodiversity conservation is through what I call “deep equity,”   i.e., a fundamental change in what we value and how we operationalize those values in law. Deeply equitable solutions maximize and synergize individual, community, and nonhuman health and potential. Such values, as they become deeply rooted in societies, would also become deeply rooted in those societies’ laws, creating a virtuous circle.  One such value change might be reflected were we to give various different biological (or nonbiological) entities fundamental rights,  reflecting our expanding conception of beings to whom we owe ethical obligations, with laws implementing those obligations.  Or, simply, the wealthy need to consume much, much less than current rates, reflecting the urgency of our situation.

But law evolves slowly, and we are unlikely to pursue many of these in the short term, and in the long term it may be too late to preserve large swathes of functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems.  And that is the ultimate disruption that environmental law has thus far been ill-equipped to prevent.

November 17, 2018 in Biodiversity, Climate Change, Forests/Timber, Governance/Management, International, Land Use, Law, North America, US | Permalink

Is It Time to Say Goodbye to Environmental Law?

Inara Scott  is an Associate Professor in the College of Business at Oregon State University

This is the twelfth  in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Besides being a legal scholar, I also write fiction. My first published book was a young adult novel, and it was in publishing that I became familiar with the problem of shelving. You see, before you can sell your book, you have to identify the genre. That designation tells booksellers and librarians where to shelve the book; for e-books, it identifies what category to put it in for online searching.

If you can’t label it, they can’t sell it.

Picking a genre determines how the book is marketed and who becomes the audience. Genres also carry deeply embedded connotations: for example, who do you picture reading romance novels? Who do you picture writing them?

The boundaries of genres can make it impossible to write and sell certain kinds of stories. Understanding this, authors consider where their book will be shelved beforethey write and modify their story ideas accordingly.  Until the 1970s, few books were written with teenage protagonists because there was no such genre as “young adult”—the genre of books for young people aged 12-18 wasn’t officially created until the 1960s.  

Like fiction authors, lawyers are trained to think about law in discrete categories. Interdisciplinary efforts may be viewed with skeptical, or even disapproving eyes.  As a professor teaching environmental law at a business school, I can say from first-hand experience that many do not consider me to be part of the “environmental law” community simply because of where I teach.

TheAnthropocene—and more specifically, climate change—offer existential challenges to the survival of humanity and life on this planet. Many instinctively turn to environmental law to solve these challenges. Unfortunately, I don’t think the challenges we face will be solved by items on the environmental law shelf. No, I believe we need to start fresh, create a new genre, and leave environmental law firmly in the past.

To explain why, let’s start with what the environmental law shelf currently contains. Most definitions of environmental law describe statutes and regulations that govern how people interact with the natural environment—the “natural environment” in this context being non-human species, plants, and natural resources. Environmental law is also generally understood to include pollution control and management of public lands and natural resources. The laws most would identify as the cannon of the environmental law genre (e.g., the Endangered Species Act, the Clean Air Act, and the Clean Water Act) focus on this relatively straightforward human-environment formula. These laws generally arose out of a perceived environmental crisis, a desire to protect the environment from human harm, and a need to ensure environmental resources were available for human consumption.

Over time, the popular understanding of environmental law, including this human-environment formula, created certain expectations for and limitations on the genre:

1)Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law. 

2)Environmental laws address narrow targets with narrow solutions. For example, the Endangered Species Act creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions—i.e., how do we protect biodiversity?  

3)Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color,  or people living in urban settings who don’t like the woods.

Point number three is perhaps the most dangerous aspect of the environmental law shelf. In a time of virulent political division, environmental law, like anything associated with climate change, is associated with one perspective and one political party.  Sadly, it is also associated with one race and one socioeconomic status, and negatively associated with strident activism.  Overall, the percentage of Americans identifying as environmentalists is down to 42% (from 78% in 1991).

So, at this point in history, what the public thinks of as environmental law is law that: does not address corporate governance or economic regulation; sees humans as separate from and antagonistic to the “natural world”; is narrowly focused on singular solutions in a complex world; and is not relevant to a diversity of perspectives or identities.

The danger here should be obvious from this list: many of the areas that currently fall out of the environmental law arena are precisely the ones that are essential to addressing the key challenges of the Anthropocene. Lawyers seeking to mitigate climate change mustembrace corporate law as a key part of their toolbox. Shareholder primacy and corporate law that fosters short-termism must be countered if we are to fight overuse of natural resources and a culture of unfettered consumerism. Smart infrastructure development and management of the electricity sector is essential to decarbonizing our economy.  Understanding how to rethink the field of economics could create a path for sustainable development.

To be clear, I’m not talking about simply rebranding the environmental law shelf. Rather, just like the genre “young adult” had to be created to allow for the flowering of teenage literature, I believe we need to develop a new term to describe the legal challenge ahead of us.

I suggest we call this new genre “Commons Law.”

By using the term “commons,” I hope to draw attention to a few issues. First, I recognize that the tradition notion of the commons is a resource shared by the public that is not privately owned. However, Commons Law will refer to regulation of public andprivately-owned resources. Why? In the Anthropocene, I believe we must confront the reality that the Earth is our commons, and whether activity takes place on private orpublicly-owned land, it can have significant impacts on all people.

Second, I hope to call up two environmental law stalwarts that may seem contradictory: Garret Hardin’s Tragedy of the Commons,  and Elinor Ostrom’s Nobel Prize winning work regarding the Governing of the Commons.  Hardin’s work is appropriate, because many would say we are living proof of the tragedy that occurs when communities share resources and individuals have the incentive to overuse and pollute, rather than conserve. Ostrom’s work is also appropriate, however, because she provides a response to Hardin, offering ways to govern shared resources that do not end in collapse of the resource and do not require privatization.

Commons Law must be broad, diverse, and big enough to contain seeming contradictions. It must recognize that creation of sustainable communities includes economic activity and must include, or even focus on, the regulation of this economic activity. It must address the governance of corporations that control the majority of global resources and threaten global ecosystems. It must also recognize the value in non-human species, biodiversity, and the preservation of spaces that are free from human development.

Commons law must be interdisciplinary and intersectional. It must avoid the trap of zero-sum environmentalism by casting a wide net for stakeholders and developing new legal tools that consider social justice alongside ecosystem protection. To meet the unique challenge of the Anthropocene we need to start thinking outside the environmental law shelf.

The cannon of environmental law deserves a proud place in environmental history for its contributions to our planet. However, it does not serve us well as a model for the Anthropocene. Moving forward, I believe we need to leave environmental law to the past and start fresh. Educate new lawyers, activists, and community members in a different way of thinking, planning, and legislating.

The Anthropocene demands nothing less.

November 17, 2018 in Biodiversity, Climate Change, Current Affairs, Energy, Governance/Management, Law, Sustainability, US | Permalink

Thursday, November 15, 2018

Preparing Environmental Law for the Climate Dystopia

J.B. Ruhl  is the David Daniels Allen Distinguished Chair of Law, Director of the Program on Law and Innovation, and Co-director of the Energy, Environment, and Land Use Program.

This is the tenth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

The probability of holding the climb in atmospheric temperature to 2°C above pre-industrial levelsis rapidly approaching zero.  Barring a global political miracle, technological breakthrough, or economic collapse, we will surpass 2°C and enter an era of climate dystopia. How long that lasts before, if ever, we turn the corner is anyone’s guess. Among the many casualties will be environmental law as we know it.

I paint a bleak picture, but it is one our nation’s institutions of environmental law must face. Vast expanses of human populations will demand that their well-being be protected from storms, droughts, pests, diseases, and other harms climate change will bring their way. The built environment will be reinforced or moved. Agricultural lands will be retooled or relocated. Halting the spread of crop pests will be a priority. Malaria, dengue fever, and other diseases will be controlled at all costs. Water will be moved to where it is desperately is needed. People living where relief is simply unattainable will be relocated or leave on their own accord. Equitable distribution of these and other protective measures will be demanded. And if environmental programs such as the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Section 404 of the Clean Water Act (CWA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and their many kin stand in the way of these adaptive responses, they will be mowed down. To be blunt about it: environmental law must prepare for the climate dystopia or be pushed aside.

The prospect of a climate dystopia means environmental law must put its money where its mouth is. For over a decade, advocates for swift and robust controls on greenhouse gas emissions argued—rightly so—that failure to implement such controls would lead to a drastic global scenario of massive disruption to social-ecological systems. With failure increasingly likely, it would be untenable to suggest that the scenario is less dire than claimed or that adaptation measures of unprecedented scale and magnitude will not be necessary. Rather, climate change “mitigationists” must now work alongside “adaptationists,” and environmental law will need to conform to both agendas.        

To be clear, I am not for a moment suggesting that environmental law back off efforts to control greenhouse gas emissions—even as we pass 2°C we must continue work to turn it around (although a separate issue is whether hardline environmentalism’s opposition to new gas pipelines and electric transmission lines is actually impeding mitigation). Rather, it is climate change adaptation, not mitigation, that will push back on environmental law as we know it. This will be a new kind of challenge for environmental law. For the most part, the controversies enveloping environmental law until now have mostly been about an “environment versus economy”  rhetoric. Environmental law has been cast by critics as the enemy of jobs and the enemy of property rights,  but rarely has it been cast, even by its most ardent opponents, as the enemy of public health and safety (a recent example, though, is President Trump’s preposterous claim that water conservation initiatives had prevented firefighters from accessing water to combat California’s raging wildfires). That will change in the era of climate change adaptation, if environmental law does not itself adapt.  

Before considering what can be done to prepare environmental law for the climate dystopia, let’s consider and dispense with the option of staying the course, fighting the fight, and not giving an inch. This strikes me as a suicidal strategy. People whose health, safety, and security depend on rapid and robust adaptation measures—shoring up coastal barriers, eradicating disease bearing insects, protecting crops from new migrating pests, securing drinking water supplies—will have sharply diminished tolerance for protracted NEPA litigation, for avoiding all impacts to endangered species, for staying out of wetlands, for conserving water supplies, and for other environmental protection and conservation measures taken as a given today. Giving no ground by behaving as if the climate adaptation demand for new infrastructure is like today’s highway project, or as if the demand for deploying new pesticides is like today’s FIFRA registration challenge, or as if the need to clear habitat for new agricultural land development is like today’s endangered species conflict, will be a sorely misguided strategy. This is not to say environmental law must simply go away, but taking a hard line position of enforcing all existing environmental laws to the hilt will ignite a furious backlash that could open the door to a wholesale rollback of regulatory programs, and with broad and deep public support for doing so.

So the more realistic question to ask is what can environmental law do now to become more facilitative of climate change adaptation without sacrificing core values and goals? We do not want to throw the baby out with the bathwater. Several strategies seem viable and capable of being implemented under existing laws. The following descriptions of their core approaches use federal law as the medium for explanation, but they could be instituted at state and local levels as well.

Maximize connections to public health and safety. Although some corners of environmental law are closely tied to promoting public health, such as air pollution regulations, that connection has not often been drawn to natural resources programs such as the ESA and Section 404, and protecting public safety has generally not been a theme of environmental law. More could be done on this front. The ecosystem services theme that has gained prominence in the past two decades is aimed in this direction. For example, wetlands provide water purification and groundwater recharge services as well as protection against inland flooding and coastal storm surges. Wherever it can be shown that robust protection of natural resources promotes climate change adaptation strategies, those connections should be made and widely advertised. This will only go so far, however, as those connection must be shown to be real and credibly assessed.

Establish criteria for what qualifies as a climate change adaptation action. Clearly, not every action and project should be considered as furthering climate change adaptation, hence it will be important to establish a set of criteria for designating a project as truly serving necessary and urgent climate change adaptation and thus qualifying for the approaches outlined below. A multi-agency commission could be charged with evaluating which projects qualify. This could very likely be instituted by a presidential executive order establishing the commission, outlining the goals, and directing executive agencies to use existing authorities to achieve them.

Embrace compensatory mitigation. Although compensatory mitigation already is deeply embedded in many programs, most prominently in Section 404 wetlands mitigation banking, it needs to be expanded, simplified, and made widely available. Climate adaptation, especially shoring up or relocating built environment infrastructure, is going to have extensive impacts on natural resources, and holding to the strategies of avoid and minimize preferred in today’s environmental programs will be problematic.   Also, the Obama Administration’s stated goal of having compensatory mitigation produce net environmental benefits, even when not required by law (it seldom is), which the Trump Administration rescinded, would be a magnet for opposition. Something closer to the ESA’s “maximum extent practicable”  standard for qualifying actions, which does not require full compensation (much less net benefits) could be workable. Section 404 of the CWA itself imposes no standard; indeed, it does not mention mitigation—Congress required the Corps to establish “performance standards” for mitigation in a 2004 military appropriations bill, but there also imposed no outcome standard. It may also be necessary to allow compensatory mitigation after the fact, so as to expedite necessary projects.

Expedite processes. Speaking of which, there already is a fierce debate whether pre-decision impact assessment processes such as NEPA, ESA Section 7, and FIFRA registration take too long to complete and are too costly. That debate will only intensify as important adaptation measures are at stake. But mandatory page limits and time limits are not needed across the board, as the Trump Administration is pushing for.  Rather, qualifying climate adaptation projects could be moved to an alternative consolidated impact assessment “fast track” under which one document would serve all such review programs, only “no action” and “proposed action” would be considered as the alternatives, and mandatory time frames would be in effect. Nothing in NEPA, Section 7 of the ESA, or Section 404 of the CWA precludes such an approach for land development projects. The respective agencies (CEQ, EPA, and Corps) could therefore promulgate regulations establishing this approach.  

Leverage statutory substantive flexibility. Many of our current environmental laws actually are sufficiently flexible to allow regulators to scale back on controls and conditions where appropriate to facilitate important climate adaptation initiatives. For example, Section 404(b)(1) of the Clean Water Act, which authorizes EPA to promulgate water degradation guidelines for the Corps of Engineers’ issuance of Section 404 permits, does not establish any fixed standards or limits. By cross-reference to Section 403(c), it simply lists the types of effects the guidelines must address. And the EPA is authorized in Section 404(c) to veto a Corps permit only if it will result in an “unacceptableadverse effect” on any of several specified resources. Similarly, FIFRA pesticide registration is held to a standard of not imposing “unreasonableadverse effects on the environment,” defined to require a cost-benefit analysis.  EPA very likely would have the authority to carve out qualifying climate change adaptation infrastructure projects and pesticide registrations for a specialized set of guidelines as to what are “unacceptable” and “unreasonable” environmental impacts. Even the ESA, often depicted as rigid and demanding, has room for flexing on behalf of climate adaptation projects. For example, given that it operates on a species-wide assessment scale, very few projects today result in the dreaded “jeopardy” finding under the interagency consultation provision of Section 7,  and the Section 10 permitting process for non-federal actions leaves ample room for using compensatory mitigation flexibly.       

Institute “repair accounts” and “repair planning” to offset relaxed standards.The quid-pro-quo for all of the above could be to keep track of impacts that were not avoided, minimized, or mitigated because of the above measures and put them in a “repair account” tagged to the entities carrying out the project. A condition of the permits covering the project could be to develop a “repair plan” that would require fixing or compensating for those impacts in the future when it makes sense to do so. For example, repairing efforts might not be prudent while temperatures are past 2°C and still rising.

***

These and similar measures within reach under existing environmental laws may not provide enough “flex” to accommodate needed adaptation initiatives, in which case the statutory can of worms might need to be opened up. That prospect could be ugly for environmental law. It behooves those interested in keeping environmental protection and conservation in play for adaptation policy, therefore, to find creative ways of molding today’s environmental programs to meet tomorrow’s climate adaptation needs while maintaining as much of the core goals in place as possible.   

I appreciate this sounds like a call for compromise—because it is—and that environmentalists have long been wary of compromises, likening them to sleeping with the enemy. But when it comes to climate change adaptation, refusing to compromise is a fool’s errand. The challenge will be in designing compromises that allow important climate change adaptation measures to go forward without imposing unnecessary adverse environmental impacts and without opening the door too wide to what qualifies for more flexible treatment. The sooner environmental institutions begin thinking about this challenge and crafting approaches like those described above, the sooner they will be perceived as a friend of adaptation asking only for reasonable environmental safeguards.         

  

November 15, 2018 in Biodiversity, Climate Change, Economics, Land Use, Law, Legislation, North America, US, Water Quality, Water Resources | Permalink

Wednesday, November 14, 2018

Designing Law to Prevent Runaway Climate Change

Melissa Powers is the Jeffrey Bain Faculty Scholar and Professor of Law, and Director of the Green Energy Institute at Lewis & Clark Law School.

This is the ninth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

“Every system is perfectly designed to get the results it gets.” If that’s so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system, because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Even laws that may appear to have ambitious final targets—such as an 80% reduction in greenhouse gas emissions or 100% renewable power by 2050—are designed with loopholes and exemptions that make it unlikely that the targets will be met.   For the United States and the world to have a chance of preventing runaway climate change, we need to change our approach lawmaking. Rather than focus on incremental changes that we hope will meet future targets, we must create outcome-oriented climate and energy laws that ensure compliance. Otherwise, the slim chance we have to prevent runaway climate change will be lost.

U.S. environmental law is entering in its fifth decade, and while the existing legal system has produced significant improvements in air and water quality, it is not up to the task of addressing climate change. This is because U.S. environmental law is not end-goal-oriented, and the few laws that may seem to establish ambitious goals are not designed to meet them. Consider the Clean Water Act, which establishes the goal of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters,” so that every U.S. waterbody is fishable and swimmable. However ambitious that goal may seem, the permitting systems under the Clean Water Act are designed and/or applied to allow continued degradation of waterbodies, including those that are neither swimmable nor fishable due to historical and ongoing pollution and habitat destruction. The Clean Air Act’s goal of “protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population,” is too vague to be considered outcome-oriented. And implementation of the Clean Air Act focuses on balancing the economic interests of polluters with the public’s interest in pollution reduction. At best, this balance will produce deep emissions reductions where cost-benefit analyses support them, but the balance is subject to distortion—as the Trump Administration’s ongoing efforts to dismantle Obama-era environmental regulations reveal. Even the Acid Rain program under the Clean Air Act, which sets a final aggregate cap on sulfur dioxide emissions, uses a final target that was set based on politics,  not environmental needs. U.S. environmental law seeks to slow the pace of degradation or to gradually accelerate the rate of improvement. While it’s important that these laws are applied to greenhouse gases until we have better laws in place, it is also essential to recognize that environmental law will not, in and of itself, do the job of preventing runaway climate change.

Nor will state and local efforts, as currently designed, do the job. In response to the Trump Administration’s announcement that it will withdraw from the Paris Agreement and in response to the Trump Administration’s assault on dozens of U.S. environmental rules,  states and local governments have declared their intent to take a leading role in mitigating climate change. Their actions, while both commendable and necessary, are generally not designed to achieve decarbonization as an end goal. Leading states like California and New York have enacted scores of laws to reduce greenhouse gas emissions, but neither state has committed to energy decarbonization. California recently adopted a target of obtaining 100% zero-carbon electricity by 2045,  but the state does not have either a goal or a strategy for eliminating fossil fuels from its transportation or heating sectors. Several local governments, happily, have made commitments to decarbonize all aspects of their energy systems.  But, thus far, they do not have strategies to meet their commitments. In short, we lack both goals and designs for effective decarbonization.

We must change this approach. The United States and the rest of the world must quickly establish and achieve end goals for climate mitigation. Climate scientists have already told us what these end goals must be: for the world to have a chance of keeping temperature increases to tolerable levels, we must decarbonize our energy systems and, ultimately, achieve net-negative emissions targets through carbon sequestration. Global greenhouse gas emissions must stop increasing, immediately, and they must then rapidly drop, so that, by 2050, developed countries emit no greenhouse gases from fossil fuels.

U.S. lawmakers at the local, state, and federal (after the Trump Administration is out of office) levels must commit to complete energy decarbonization by 2050.  They then must design their decarbonization strategies to ensure they meet this ambitious target. Much like we expect architects to design buildings that will perform as expected, we need to expect our lawmakers and regulatory agencies to create decarbonization strategies that will achieve the goals. Rather than apply existing laws with the hope that they will eventually reduce emissions over time, we need to create legal systems that ensure success. If “every system is perfectly designed to get the results it gets,” it’s past time for the United States to adopt a design approach to decarbonization. We can’t afford to get it wrong.

November 14, 2018 in Air Quality, Climate Change, Current Affairs, Energy, Governance/Management, Law, Legislation, US | Permalink

Tuesday, November 13, 2018

Liquid Business

By Vanessa Casado Pérez

Vanessa Casado Pérez is Associate Professor of Law and Research Associate Professor of Agricultural Economics at Texas A&M University School of Law

This is the eighth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

The aphorism “water is the new oil” is now truer than it has ever been. While many use the phrase to suggest that water is as scarce and valuable as oil once was, it is also true in another sense: speculation in water markets now rivals speculation in oil markets. Oddly, however, water scarcity has not translated into a higher price for water, as it has done in oil. But this anomaly may be on the verge of changing as international investors start to enter the business of climate change. From oil tycoons like T. Boone Pickens to international hedge funds,  investment in all things water is on the rise. And while many deny climate change, the market does not. Since climate change is widely expected to induce scarcity in water supplies, business investments in the water market are increasing rapidly.

The alarm has gone off. Those who believe markets should not commodify water are appalled by the role that investment moguls play: all the investments in the water business may lead to price increases for water. There is some merit in valuing water as a scarce resource so that we do not misuse it. The more expensive it is, the shorter our showers would be and the more thoughtful the choice of crops and irrigation techniques will be.

But using the market to allocate water also gives rise to two concerns: the affordability crisis for low-income populations and the inability to capture certain intangible values, such as environmental protection, in a single monetary price. The first concern is often answered by saying that the amount of water needed to satisfy our basic needs is around 1% of the total water used. We could let the market deal with the rest and figure out how to allocate the 1% cheaply. Environmental regulations, such as water quality or minimum instream flows, could address the second.

While the answers to these concerns may not be reassuring, we should take comfort in the fact that water is somewhat speculation-resistant, at least compared to oil. Unlike oil regulation, the regulation of markets for water rights has built-in mechanisms to prevent speculation. These constraints in water markets have driven investments towards related industries, like water conservation technology or reuse.

Water rights can be traded in the Western United States and in other jurisdictions such as Australia or Chile. Trade includes leases and sales of water rights that give the buyer the right to use water if it is available. A common transaction might be one between an agricultural right holder and an urban consumer, because the latter often has a higher willingness to pay and a less elastic demand curve. In the US West, these types of transactions have brought flexibility to water allocation systems, where the majority of water rights were allocated when agriculture was the main economic activity and large cities and suburban areas with luscious lawns had not developed. Those transactions should make the farmer realize the opportunity cost of using water. Transactions are subject to different levels of control.  First, transactions are subject to administrative review. Transactions cannot injure third parties or the environment. Water rights are defined across several variables, including the point of diversion and the type of use. A transaction will normally imply a change in either or both of those variables and is likely to affect third parties.

Another layer, and more relevant for the purposes of speculation, is the forfeiture provision included in all prior appropriation states and many other jurisdictions. These forfeiture provisions mandate that holders of water rights use the water. If they don’t use it for a certain period, usually around 5 years, they may lose the water right.So unlike with real estate or stocks and bonds, where owners can wait for the market to peak and then sell their assets, in water markets, owners cannot engage in this kind of wait-and-see. That said, if water becomes valuable enough, investors may find a way around these rules. One company, Water Asset Management,  is taking that route—considering land an accessory. It focuses on water itself but to get to it, it buys land and it tries to make use of the land to break even. While others have not invested in water rights, they have invested in groundwater or water reuse, which profit from water scarcity.

The question is whether there is something that water law could do to stop big players from dominating the water market broadly understood beyond the forfeiture provision and the approval requirements. It can. Furthermore, water law may be able to target the surrounding industries that investors are interested in. First, regulators could limit the number of shares a single entity could accumulate. One of the main fears is a market dominated by big players. While antitrust regulations are set up to deal with monopolistic practices that harm the consumer, water law can take a page from other natural resources markets and avoid concentration by limiting the amount of water rights that can be accumulated in the same hands. In fisheries’ “individual transferable quotas” programs, there are limits on the shares of the total allowable catch that a single ITQ owner can acquire. This should prevent the concentration of the agricultural industry in a few hands, mitigating the concerns about displacing local farmers.

Second, groundwater should be subject to a permit system like surface water is. Investment companies are keen on exploiting lax regulations and have noticed that in many places groundwater may be more readily accessible as an investment. The separate regulation of a unique resource of surface and groundwater denies the science and makes both, given their interconnection, overexploited.

Third, wastewater regulation needs to be properly designed. As it stands today, return flow belongs to the user who diverted the water. A city may have a water right and divert water from the river. The city does not consume all of it. It usually treats the wastewater and sends it back to the river, where downstream users use it. But if a city decided to reuse wastewater before bringing it back to the river, it could do so, leaving downstream users without the water they have relied on for decades. In some states, like Arizona, cities may be able to not only re-use it in their area but sell the water as a commodity because cleaned up wastewater is considered a new product. While incentives to invest in reuse are paramount, water regulations need to better address the effect on downstream users and the ecosystem needs.

An adage seems appropriate to close this essay. Mark Twain purportedly said that “Whisky is for drinking and water is for fighting.” Water scarcity will certainly cause fights as there will not be enough water for all users. Given the business of water in times of climate change, the question that lingers is whether small water right holders and the environment can put up a fight against these powerful businesses. The three water law measures stated in this essay may be able to help.

November 13, 2018 in Current Affairs, Economics, Governance/Management, Land Use, Law, Legislation, North America, US, Water Quality, Water Resources | Permalink

Disruption as Opportunity

Disruption as Opportunity

By Jessica Owley

Jessica Owley is Professor of Law at University of Buffalo Law School

This is the seventh in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

  1. Environmental Disruption.

The world has always been full of disturbances, alterations, and disruptions. This has been particularly true when examining the ecological conditions of the Earth. Our planet has undergone many changes, even some drastic ones. Yet, the current rate of environmental disruption is unquestionable and unprecedented. Climate change is clearly the major disruptor, changing our atmosphere, our ocean currents, and our ecosystems. Humans are a particularly destructive species though and even without the implications of climate change, we are disrupting the environment. We convert species habitat. We pollute rivers. We overhunt. Our current historical environmental atrocities, however, seem trivial in the context of climate change. Particularly tricky is the unpredictability of climate change impacts and intensities.

  1. Legal Disruption.

Complicating the environmental disruption is an increased disruption of the American legal system. In the 1970s, the federal government began acknowledging environmental harms in our country and creating legal strategies to combat them. The goal of the Clean Air Act (1970) is to prevent and control air pollution. The Clean Water Act (1972) seeks to eliminate the discharge of pollutants into the nation’s waters. The Endangered Species Act (1973) recognizes the negative impacts of humans on the environment and seeks a “means whereby the ecosystems upon which endangered species … depends may be conserved.” And with the clearest acknowledgement of human impacts on the environment, the National Environmental Policy Act (1970) recognizes “the profound impact of man’s activities” on the natural world and sets a national policy to “prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [hu]man[s].”

While the effectiveness of these laws and the strategies they adopted is open for debate, they represented an awareness of environmental harm and a need to combat it. All of these statutes and others are now under attack from the Trump Administration and the Republican Congress. The Administration is seeking repeal and revision of the statutes along with changes to regulations and agency policies. Beyond the laws on the books, the Administration is also disrupting federal environmental law by dismantling the agencies that carry out those laws. The number of employees is shrinking along with departmental budgets. Science posts are being removed or left unfilled and scientific reports and language specifically prohibited or hidden.

While the assault on the panoply of existing federal environmental programs is disheartening, federal climate change policy is truly depressing. In 1992, world leaders (along with many others) met in Brazil and acknowledged the intense environmental, economic, and social problems caused by global climate change. Agreeing that the cause was “anthropogenic,” President George Bush  signed the agreement and applauded the countries of the world in taking quick action to combat the serious problem of climate change. Despite this statement (and the U.S. role in shaping both the initial agreement and subsequent accords), the federal government has never been a true leader in the fight against climate change. However, the Trump Administration’s actions in this realm are so radical as to again merit the label disruptive. Shortly after taking office, Donald Trump announced withdrawal of the United States from the Paris Climate Agreement. Even more insulting, the only significant U.S. delegation at the last conference of the parties to that 1992 treaty preached increased use of fossil fuels.  As with the disruption to our environment, the disruption to our environmental laws is unprecedented.

  1. Disruption as an Opportunity

The real conundrum for environmental activists and humans who care about the world is determining what to do in the face of this disruption. The paragraphs above paint a bleak picture and suggest that disruption is doing significant harm. A challenge then is whether we can turn that attitude on its head and make these disruptions opportunities. At our 2018 ELC meeting, Vanessa Casado Perez noted that crisis, hitting rock bottom, is what really spurs human action on environmental issues. If things are really falling apart at the federal government, maybe this disruption of environmental law will trigger new energy and action from other sectors. Disruptions in innovation are changes to technologies that can help sectors (and sometimes even societies) leap ahead to a new level. Creative ideas lead to new solutions.

One sphere where this environmental and legal disruption is inspiring action is in the private sector. While Inara Scott reminds  us that the business sector can be a force for positive change there is also a strength in individuals acting on their own or joining force with the power of nongovernmental organizations. In this light, a turn to the private seems both logical and sensible. Citizens seek to fill in the gaps left by a withdrawn federal government. It is unclear whether they can work as effectively toward reducing the harms of ecological disruption, but in a time of legal disruption their efforts gain prominence. Three examples highlight this trend.

Citizen Science and Information Protection: As government agencies began scrubbing their websites of environmental information, particularly discussions of climate change, others began archiving the information and making it available. Private organizations like the Environmental Data and Governance Initiative formed shortly after information began disappearing from public websites. Groups that had formed earlier for other reasons (like associations of librarians)  also took up the cause of protecting and providing information when they saw the need arise. Additionally, while the EPA may be employing fewer scientists, people across the planet are stepping up and collecting data to aid in scientific research and environmental monitoring.  The rise of the citizen scientist is an innovation that can improve environmental information and outcomes if deployed correctly.

Increasing Support of Environmental NGOs and Land Trusts: After the election of Donald Trump, donations to environmental advocacy organizations rose. Public attention to environmental issues can be seen in events like the March for Science and the Peoples Climate Movement. Gallup’s most recent polls show concern for the environment growing in the United States, even as fewer people identify themselves as environmentalists. Land trusts are an interesting part of this trend. Like other environmental organizations, they also saw their membership numbers and dollars increase post-Trump. Their focus differs from traditional environmental advocacy organizations as they seek to meet their conservation goals through protection of individual parcels and working with property tools. By purchasing land and rights in land, they seek to prevent development and conversion of land to uses that diminish ecosystem services and amenities. Working with private landowners, they often bring new people into the conservation movement. Through working with property rights, they create restrictions that are more durable than federal regulatory mechanisms.

Citizen Suits: Finally, despite a hollowing out of our environmental laws, activists are drawing upon the citizen suit provisions contained in many of our key environmental statutes. While there have been some proposals that would impact some of the fee-shifting provisions of citizen suits, neither Congress nor the Executive branch has suggested repealing citizen suit provisions or revising the Administrative Procedure Act, which often provides the hook for environmental litigation. Law firms are preparing for an increase in environmental citizen suits and the environmental activists seem happy to comply. Thus, we can still look to our 1970s law for some solace even though we must acknowledge the standing hurdles for environmental citizen suits are nontrivial.

These examples illustrate how energy and innovation by private actors can be part of the story of response to the current disruption of environmental law. Taken together with other examples and proposals in these essays, they can provide us with a way forward if not quite a way out.

November 13, 2018 in Air Quality, Biodiversity, Climate Change, Current Affairs, Governance/Management, Land Use, Law, North America, Science, US | Permalink

Sunday, November 11, 2018

Malignant Normality

By Katrina Fischer Kuh

Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University

This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

In the spring of 2018, I joined professionals from a number of fields, including law, public health, science, and psychology, at the Witnessing Professionals and Climate Change conference at Princeton University, to contemplate the impact that the global climate crisis has had on our understanding of professional responsibility. In the rich discussion that ensued, Professor Robert Jay Lifton, Lecturer in Psychiatry at Columbia University and Distinguished Professor Emeritus of Psychiatry and Psychology at the City University of New York, used a phrase—malignant normality—that was referenced throughout the conversation and has resonated with me as I have continued to consider the intersection between climate change and the professional responsibilities of attorneys.

In many important respects, norms of legal professional conduct—as expressed in the AALS Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities and the Model Rules of Professional Conduct and as exemplified by the actions of many attorneys and professional associations—position the legal profession to provide support and leadership in response to climate change. The AALS Statement of Good Practices provides that law professors have an “enhanced obligation to pursue individual and social justice” and that “engaging in law reform activities or advocating for improvements in law and the legal system is a valued role of legal academics”; the Model Rules encourage attorneys to participate “in activities for improving the law” and allow attorneys when advising clients to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” And the Environmental Law Institute recently co-sponsored the Second National Conference of Lawyers Committed to Addressing the Climate Emergency, which involved participants from across the professional spectrum, including private practice, academia, and public interest.

In other ways, however, legal professional norms may frustrate an efficacious response by the profession to climate change. For example, little attention has been paid to the role attorneys may have played in the energy industry effort to mislead the public about climate science and whether, if at all, the Model Rules speak to that type of conduct. Naomi Oreskes and Geoffrey Supran, InsideClimate News, and the Union of Concerned Scientists have extensively documented how some energy industry actors orchestrated a campaign to market lies about climate science to the public. While the role of attorneys in the climate disinformation campaign is not (yet) clear, attorneys were deeply involved in the similar campaign by tobacco companies to lie to the public about the health effects of smoking. Indeed, climate disinformation is but one in a series of revelations about corporate public disinformation efforts which now perhaps includes the safety of opioids as well.

Yet, while many have recognized that attorneys often advise clients regarding public relations, the Model Rules provide little clear guidance about the norms that should govern attorney conduct in this capacity.

  • Model Rule 3.3 (Advocate, Candor toward the Tribunal) prohibits a lawyer from knowingly making a false statement of fact or law or offering evidence that the lawyer knows to be false, but is limited to representations to a tribunal.
  • Model Rule 3.6 (Advocate, Trial Publicity) prohibits “[a] lawyer who is participating or has participated in the investigation or litigation of a matter” from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter,” but is limited to lawyers acting directly as spokespeople in the context of an adjudicatory proceeding.
  • Model Rule 4.1 (Transactions with Persons Other Than Clients--Truthfulness in Statements to Others) prohibits lawyers from knowingly making a false statement of material fact or law to a third person and from failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. But various requirements embedded in the Rule raise uncertainty as to whether and how it could apply to counseling misleading public communications. It may be difficult to show that the underlying corporate conduct constitutes fraud as this is indexed to the substantive or procedural law of the applicable jurisdiction and information protected by privilege need not be disclosed. Additionally, it is not clear what level of knowledge satisfies the requirement for “knowingly” nor is it clear what would be understood to constitute a material fact in that context.
  • Model Rule 8.4 (Maintaining the Integrity of the Profession, Misconduct) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or to counsel a client to engage in activity that would violate the Rules of Professional Conduct. This would seem, on its face, to be potentially applicable to attorney involvement in corporate disinformation campaigns. However, Model Rule 8.4 has not been interpreted or applied in a context similar to that of counseling corporate public disinformation. The Restatement (Third) of the Law Governing Lawyers cautions courts to avoid overbroad readings of the Model Rule and a review of cases and disciplinary proceedings reveals that the Model Rule has typically been applied to conduct of a very different nature, such as when an attorney helps a client structure a fraudulent transfer to avoid a known creditor or backdates documents.

Can attorneys ethically assist their clients in misleading the public through corporate disinformation campaigns designed to distort public opinion, like the climate disinformation campaign? The answer to that question is frustratingly opaque—there is no clear guidance under the Model Rules. In two companion articles, professional responsibility scholar Michele DeStefano Beardslee reported on the results of a study documenting the increasing role of attorneys in managing corporate public relations and analyzed the Model Rules for guidance regarding attorneys functioning in that role. She concluded that “the current ethics rules, adversarial system, and economic incentives almost predestine that attorneys will aid their clients in misleading the public about corporate legal controversies,” observing that “[f]or statements that misrepresent or stretch the truth, the current interpretations of the Model Rules do little to constrain” attorney advocacy in the court of public opinion.

The lack of clear guidance about the ethical obligations of attorneys advising clients in the public relations context may thus be an aspect of our existing professional, normative structure that has contributed to inertia on climate issues. And there are other climate-relevant aspects of legal professional norms that warrant examination. Chief among these is the continued greenhouse gas-intensive travel to professional conferences that is, perhaps, profligate in present circumstances. Critical assessment of these and other legal professional norms is warranted to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a malignant normality that deepens the climate crisis.  

 

November 11, 2018 in Climate Change, Current Affairs, Law, Sustainability, US | Permalink

Saturday, November 10, 2018

Environmental Justice and Environmental Sustainability: Beyond Environment and Beyond Law

By Sarah Krakoff and Shannon Roesler

Sarah Krakoff is the Moses Lasky Professor of Law at University of Colorado Law School

Shannon Roesler is Professor of Law at Oklahoma City University School of Law

This is the sixth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Despite risks to the cultural and natural resources of the Standing Rock Sioux Tribe, the federal government allowed the construction of the Dakota Access pipeline. When officials in Flint, Michigan, a majority-minority city where 40% of the people live in poverty, purported to cut costs by switching the city’s water supply, they cut corners and failed to treat the water to prevent corrosion. Their decisions exposed the city’s residents to dangerous levels of lead in their drinking water. Recent hurricanes have again devastated the most vulnerable communities, and yet the President dismisses the 2,975 deaths from Hurricane Maria in Puerto Rico as fake news created by Democrats to make him “look as bad as possible.”

But thousands of people did die. Thousands of people were exposed to lead in drinking water. And the promises made to the Standing Rock Sioux Tribe, long ago enshrined in treaties, were once again broken. How can the next generation of environmental laws do better? If the underlying problems include structural racism and inequality, the answer may require radical change. To achieve environmental justice on a sustainable planet, the next generation of environmental law will have to change in two ways. It will have to have to go beyond the environment and beyond law.

That is a tall order. But if we are asking big questions there is no point in being coy or timid. There are two huge problems facing the planet right now. One is that its stable operating systems are at risk of going awry. Climate change is the signature example, but not the only one. The second is that inequality between rich and poor has increased dramatically over roughly the same period that we have put the planet’s operating systems in jeopardy. To make matters even more complicated, wealth inequality is shot through with the structures of racism and colonialism. So if we are thinking big, we might as well think beyond the parameters of our training and disciplines. We should think about what sorts of cultural, economic, and legal structures would result in a just, equitable, and sustainable world for humans and non-humans. And then we should try to think and imagine a way from here to there.

Time is of the essence. We need new visions of an equitable, sustainable future now. Climate change (which is just one of the earth system boundaries at risk) could soon result in a virtually unrecognizable and volatile planet. In a recent article, Swedish scientist Will Steffen and co-authors outlined a scenario that leads the Earth to a situation where positive feedback mechanisms push “the Earth System toward a planetary threshold that, if crossed, could prevent stabilization of the climate . . . and cause continued warming on a ‘Hothouse Earth’ pathway . . . even as emissions are reduced.” That pathway is not inevitable, but if it is not averted through rapid and steep reductions in greenhouse gas emissions, “Hothouse Earth is likely to be uncontrollable and dangerous to many . . . and it poses severe risks for health, economies, political stability (especially for the climate vulnerable) and ultimately, the habitability of the planet.”

If the “Hothouse Earth” scenario comes to pass, it will occur on a planet marked by dramatic and racialized inequality. Economist Thomas Piketty has documented the rise in inequality since industrialization, attributing it to the fact that capital wealth has grown faster than incomes. The upshot is that the United States and other western democracies have very little economic mobility, and are more similar in this regard to monarchical or feudal societies than functioning democracies. In the United States, the long history of legal, political, and economic marginalization of African-Americans, Native Americans, and other non-whites means that today’s inequality is also marked by race.

Further, recent research has shown that natural hazards not only have disparate impacts on poor and minority communities. But that they too contribute to wealth inequality: “Overall, . . . natural hazard damages are contributing to wealth inequality. Additionally . . . while inequality is occurring along other lines, the most notable inequity is along lines of race, education and homeownership.” In other words, environmental harms not only have disparate economic and racial impacts, they also entrench racialized inequality.

In the current cultural and political moment, the structural causes of environmental degradation, rising inequality, and racism are converging in troubling ways. Following the election of President Barack Obama, a study found that white Americans were less likely to view climate change as a serious problem, suggesting a link between racial resentment and climate change denial. Moreover, under the Trump administration, U.S. environmental policies have actively excluded the most vulnerable communities. For example, shortly after President Trump assumed office, the head of EPA’s environmental justice office resigned in response to the administration’s proposed cuts to environmental justice programs. In addition, the administration’s new $1-7/ton social cost of carbon completely ignores the costs of global warming outside the United States, an isolationist approach to a quintessentially global problem. The Trump administration’s indifference to the risks of a warming planet places the nation’s, and the world’s, most vulnerable populations at greatest risk. It is hardly surprising that a journalist summarized the most recent international report on climate change in the following way: “Either way, the outlook is dire, especially for the poor.”

So what would laws look like that could take us off of the pathway to a deeply unequal “Hothouse Earth” and toward a just, equitable, and sustainable planet? They would look like anti-poverty laws, wealth redistribution laws, public infrastructure laws, and health care laws. They would also look like much stronger and more directive environmental laws with interlinked goals of just and equitable decarbonization. And environmental laws would engage at all scales of governance, making local issues of educational segregation and housing inequality national priorities. In short, they would be laws that simultaneously ensure a just, equal, and free society, and that protect the ecological foundations of the planet.

To achieve such laws (and the economic system in which they would participate), it will likely take the kind of massive and diverse activism that resulted in the civil rights and environmental law-making moments of the 1960s and early 1970s. It will take a movement that seeks more than legal change. Yet there is plenty for lawyers to do. Without lawyers to do the work on the front end, and to be standing by during and after the chaos, the chances of getting on the right path are greatly diminished. In short, to get on the path to a just, equitable, and sustainable Earth, it will take much more than legal change, but it will require no less than the full attention of lawyers committed to defeating racism, reversing inequality, and saving the planet.

November 10, 2018 in Air Quality, Climate Change, Current Affairs, Governance/Management, Law, North America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink

Friday, November 9, 2018

You Cannot Disrupt That Which Was Never Ordered – Land Use Policy in the U.S.

By Blake Hudson

Blake Hudson is Professor of Law and the A.L. O'Quinn Chair in Environmental Studies at the University of Huston Law Center.

This is the fifth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."

Development picture
The theme of the 2018 Environmental Law Collaborative, “Environmental Law: Disrupted,” effectively captures the way in which federal environmental law has been seemingly turned on its head under the current administration. It truly feels like a disruption, as if nearly 50 years of environmental progress is not just being halted, but is at risk of being reversed, even on issues that in recent decades seemed settled—like having safe air to breathe and safe water to drink. Of course, we have seen this play out before, such as when Ronald Reagan was first elected and began the rollback of federal environmental protections. But partisanship is much more acute today than it was even then, and the disruption seems to have an air of permanence about it, or at least an air of long-term persistence.

In light of this disruption, many are calling for an increased reliance on the next line of defense, state governments. It is an understandable position, given that some states have demonstrated an interest in addressing environmental problems more broadly, as well as the political will and administrative capacity to do so. Yet for many more states, particularly in regions of the country like the Southeast (where I am from), an understanding of the state’s role in protecting citizens from environmental and associated economic harm, and the development of the political will and institutional capacity to carry out such programs, feels quite remote. In these locations it is arguably not much further developed than it was when the state of Ohio seemed content to let the Cuyahoga River burn in the 1960’s.

But what about the areas of law where there never was a comprehensive, ordered legal approach already in place to be disrupted?—the legal fronts where states have yet to comprehensively exercise their authority to protect the environment, and where the federal government has little to no regulatory safeguards in place? Such is the case with land development that impacts natural resources, and the dearth of policies in place to comprehensively and effectively deal with the scope of the problem. In this space there really cannot be a disruption of the legal regime because there never was a meaningful evolution or progression towards comprehensive environmental safeguards to begin with.

Control over the paving of landed natural capital with development in the U.S. remains an uber-decentralized mishmash of policy approaches (at least in places where there are any policies actually implemented). Land use regulation is the “quintessential state and local power,” as articulated by the U.S. Supreme Court. Thus, the fifty states hold the keys to how land development proceeds, with little input from the federal government (except in the limited circumstances where an endangered species or a wetland connected to navigable waters is present). Most states, in turn, often leave decisions over land use development to the 88,000 subnational governments that stretch across the U.S.—that is, unless the states do not like the way in which local governments are trying to control land development and prevent environmental harm, in which case they can preempt those efforts (here and here).

While the federal government refuses to enter the regulatory space, land development impacts many of the targets of federal environmental regulation. Land development affects water quality (the Clean Water Act), air quality (mobile emissions under the Clean Air Act), and the driver of species decline, habitat destruction (the Endangered Species Act). So the subject matter of federal environmental law could be addressed more effectively if state and local governments engaged in better land use planning.

Considering the lack of federal involvement, and an ad-hoc, inconsistent approach to land use planning at the state and local level (with southeastern states being exceptionally lax regarding land development controls), urban sprawl proceeds apace, and natural capital is being replaced at a profound rate. While some jurisdictions have engaged in innovative land use planning and development, and gains have been made on some fronts, until society begins to view development per se as a complex, “super-wicked” environmental problem, we will not maintain a sense of urgency along policy fronts to address the problem’s scope. We will keep addressing the symptoms of the land development problem (endangered species, poor water quality, poor air quality) rather than finding a cure for the disease.

While explication of the minutiae is beyond the scope of this post, I am currently working on a project developing a typology of factors that contribute to the wickedness of the land development problem (stay tuned). These include the challenges of collective action unique to the land development sector; corporate design of that sector; legal institutional hurdles; economic drivers; intersecting federal policies; property rights; political economy; time/behavioral science/spatial and geographic factors; population/demographics; and an ever-changing natural environment in a time of climate change. Articulating and exploring these factors will be important to both change the dialogue on land development as an environmental problem and to more adequately inform policy responses to address the problem.

In short, the current state of affairs at the national level is a dramatic disruption of environmental progress. But we cannot forget the areas where holistic environmental progress has never been achieved. In a world of growing populations and economic growth tied quite directly to the replacement of natural capital with human-built capital (Texas, a state of 25 million people in 2010 is projected to double to 50 million citizens by 2050 due to rapid economic expansion), we can no longer take our country’s vast expanse of land for granted. We must do better to plan and control growth, the development of our land, and the replacement of our natural capital. If not, we will eventually find the loss of those environmental resources quite disruptive to human progress and well-being.

November 9, 2018 in Air Quality, Biodiversity, Current Affairs, Land Use, Law, North America, Sustainability, US, Water Quality, Water Resources | Permalink

Thursday, November 8, 2018

Learning from Local Response to Environmental Disruption

By Keith H. Hirokawa and Jonathan Rosenbloom

Keith H. Hirokawa is Professor of Law at Albany Law School

Jonathan Rosenbloom is Dwight D. Opperman Distinguished Professor of Law at Drake Law School

This is the fourth in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law.  Disrupted."

 

A brief perusal of the history of environmental law illustrates the ways law might be employed to suffer through a constant state of disruption. In the past, we have largely relied on state and federal environmental legislation and regulation to accomplish the task, in part because of a fear that local governments will “race to the bottom” and take a competitive advantage against their more regulatory-prone neighbors. We would suggest that the reliance on state and federal regulation, as well as the lack of confidence in local governance, has served to undermine sincere dialogue on the potential of local government to govern well both within and across boundaries.

The present circumstance of climate and ecological disruption will provide an opportunity to revisit the issue of local environmental law. Specifically, climate change will require more engagement with local governments because of the local stakes involved. Given current and likely future disruptions from rising sea levels, heat waves, and storm events, local governments will be faced with coastline insecurity, vulnerable infrastructure and difficulties in meeting essential human needs, geological instability, uncertain ecological changes (such as invasive species), water scarcity, and population migration. Such changes will permeate social, economic, and environmental expectations in every community. Given the role that local governments play in responding to challenges to local quality of life and security, local governments will inevitably become players.

There are and will be instances where local governments manipulate social, economic, and environmental resources to protect their own. But there are and will be examples that illustrate the contrary. Some local governments forego regulation of extraction and resource development, while others will adopt more comprehensive land use regulations that maintain ecosystem services and other quality-of-life determinants. But differences in local governance are neither surprising nor unwarranted – governments illustrate legitimacy though responsiveness to local needs, and local needs differ across boundaries. More importantly, norms and values develop in very local ways, and it would be a mistake to disregard value differences, even at minute levels, that occur across borders.

Local is not only a circumstance that is relevant to understanding particular governmental actions. Local also provides a framework for understanding common concerns such as shared resources, regional circumstances, and intergovernmental cooperation. And, in the context of disruption, local can play a significant role in at least the following four categories: responsiveness; baseline information generation; innovation research; and normalization.

  1. Local is Responsive to Change

Environmental disruption is coming and, in fact, is here. Law will have to develop new strategies to face the new challenges and immediacy will be a factor. Government strategies should be designed to launch on short notice. It is easier to experiment with new regulations and approaches at the local level: first, because the closeness of local government to governed communities demands it; and second, because the scale of local governance makes debate, passage and implementation of new approaches easier.

Local governments are acutely responsive to social, economic, and environmental change for good reason. Regardless of how such disruptions are perceived on a regional, state or federal level, they are felt locally. The invention of the elevator and automobile fundamentally altered the role and potential of urban areas to provide homes and economic opportunities. In turn, such disruptions helped shape attention to infrastructure and governmental service needs. More recently, local governments have expeditiously responded to water shortages by prohibiting water waste, restricting specific water uses, and requiring installation of efficient water fixtures and grey water use in new construction and building renovations. Similarly, local governments have controlled stormwater flows by implementing measures for permeable pavements, green roofs, and rainwater harvesting. See, e.g., Chatham, MA, Protective Bylaws § 4(B) (2016) (floodplain development and permeable driveways);Denver, CO, Code of Ordinances §§ 10-300 to 10-308 (2017) (green roofs);San Diego, CA, Rain Harvesting Rebate Program (cash incentives rain barrel installation).

  1. Local as Source of Baseline Information

As a matter of course, local governments gather and assess information on local vulnerabilities to disruptions. Local governments keep a watchful eye on natural and built infrastructure assets, the availability of nature resources, housing stocks, access to food and energy, and population dynamics. Local governments often require permit applicants to provide critical information on development elevations, habitat values, and slope stability. Likewise, local planning and development review processes have resulted in a wealth of information on groundwater budgets, canopy cover, and buildable lands. Other local governments require energy benchmarking and audits for larger buildings and governmental operations. See, e.g., Atlanta, Georgia Code of Ordinances § 8-2002 (2016) (requiring both energy benchmaking and auditing for certain public and private buildings); Denver, CO Code of Ordinances § 4-53 (2016) (commercial building benchmarking and reporting); Seattle, WA Municipal Code § 22.920.010 (2010)(requiring building benchmarks and reporting); Austin, TX Code of Ordinances § 6-7-31 (2011) (commercial facilities required to calculate annual energy budget). The information is commonly used to inform a variety of local government decisions such as land use planning and permitting, budget decisions and infrastructure planning, event planning, intergovernmental cooperation and even the exercise of eminent domain. The information helps to identify future risks and costs, the potential for public interest in particular problems, and the solutions that might be relevant.

Local governments are not better at gathering this information due to sophistication or funding. Local governments are better at it because of their access to a deep pool of relevant information and their lens through which the information is discerned. The important point here is to recognize the critical role of location to the way local governance happens. Based on geological, ecological, economic, and cultural circumstances, communities adapt to the demands of living in a particular place because communities must survive in their own place. This type of experienced information is tattooed with the values that particular resources have to their beneficiaries and users and reflected in local resource decisions.

  1. Local as a Laboratory for Innovative Responses

Communities approach particular changes in their own ways – some dig in to wait out changes, some take more protectionist ideals and seek to maintain the status quo through zoning, where others employ more forward-thinking measures through long range planning. It should not be surprising that different communities often understand changing circumstances in ways that appear to contradict. But it is also not surprising that a particular community’s reaction to new challenges follows more or less the same basic premise: although local needs and circumstances will vary, human needs and quality of life are the common driver.

Accordingly, the third observation about the importance of local is variation in innovation. The development of technologies and approaches to construction, infrastructure, economic development priorities, education, and housing (and others) are designed to resolve the effects of disruption and secure a community’s vision against the backdrop of change. Importantly, variation in local responses to disruption generates significant information on what works and the local circumstances that facilitate stories of success.

Many local governments are experimenting with incentives to promote green building techniques and even requiring developments to implement the most sophisticated building materials. While the federal government pursues policies that support coal and concrete, local governments are pushing forward with promoting technologically advanced forms of building. Lancaster, California, requires that many new buildings meet net zero standards or be outfitted with a solar energy system that can produce two watts of power for every square foot of the home. Lancaster, Cal., Energy Code § 15.28.020 (c) (2017). Georgetown, Texas, offers multiple incentives, including net metering and rebates, for residents to add renewable energy sources to their properties. Georgetown, TX, Code of Ordinances § 13.04.083 (D) (2) (2012). Miami Beach, Florida, a city already struggling with climate changes, is assessing building fees to combat the impacts of rising sea levels through innovative projects such as environmental restoration projects, monitoring, green infrastructure, and stormwater quality improvements. Miami Beach, FL, Code of Ordinances § 133-6(a)(2016).

  1. Local as Normalization

Elevating location in an analysis of environmental governance does not suggest any particular value as a normative matter. There will be few response strategies that will be effective in every community, and a “good” strategy may be best guided by the notion that it is good if it would work here. In the meantime, preemption is a good check on local governance, and top-down approaches to land use regulation may offer meaningful constraints on the bad kind of intergovernmental and inter-community competition. Nevertheless, the pervasiveness of location suggests that we should not rush to preempt local initiative. In the meantime, although local should be recognized for uniqueness, the contingencies in the arena of local regulation can serve as a gauge for developing norms. Successful strategies can be borrowed and adapted to different communities, which in turn will generate additional confidence as response strategies across the spectrum of ecological, geological and hydrological difference normalize in the common goals that drive locational adaption.

November 8, 2018 in Climate Change, Current Affairs, Governance/Management, Land Use, Law, Legislation, North America, Sustainability, US, Water Resources | Permalink

Monday, November 5, 2018

Environmental Law. Disrupted. Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law, and ultimately to improve the environmental conditions of the world in which we live. 

In 2018, we watched the U.S. regulatory environment change rapidly, even as we witnessed the escalation of visible and profound impacts from climate change. Alongside these events, and with full knowledge of the limited time left in which to address existential environmental challenges, the question the group attempted to tackle at our collaborative meeting was whether environmental law as we know it is up to the task of meeting these ongoing, escalating, and perilous threats. 

Each of us has challenged ourselves to think deeply about where environmental law should be headed in the next decade or more, and how we might get there. The blogs we will be posting in the next two weeks discuss our individual conclusions about how we might reframe and reshape -- and ultimately, disrupt -- the environmental law landscape to better address the catastrophic, synergistic, and disruptive ecological changes portended by climate change, biodiversity destruction, and social inequality. We asked ourselves, what would it look like if we radically and fundamentally reoriented our environmental law and policy agenda? Is this possible, desirable, or both? 

As we are a diverse group of scholars and thinkers, our conclusions are by no means uniform, but they share a common thread: this is not time for business as usual. The system requires significant, potentially disruptive changes, some of which may make us profoundly uncomfortable. As you will read, Sarah Krakoff and Shannon Roesler ask what law would look like if we conceived of global climate change as a social justice challenge and accordingly remade laws addressing poverty, wealth distribution, public infrastructure, and health care, while Keith Hirokawa and Jonathan Rosenbloom would reorient adaption to climate change by heeding and disseminating legal strategies local governments are formulating. J.B. Ruhl argues that to confront the urgent need for climate change adaptation, environmentalists will have to compromise in strategic ways, while Inara Scott asserts that it is time to bid goodbye to environmental law and start fresh by reconceptualizing a more inclusive, more effective “commons law.”  

Continuing in this line of disruptive thinking, David Takacs suggests radically rethinking biodiversity laws before it is too late to preserve functioning ecosystems or the magnificent creatures that inhabit them, or to save our own species that ineluctably depends upon these ecosystems. Erin Ryan argues that with environmental laws under attack, we must think of creative, out of the box ways to defend it at multiple levels of legal hierarchy. Blake Hudson points out that many kinds of ecological disruption can be tied to land development -- where there has never been much effective law to disrupt in the first place. And in an essay that may surprise many, Robin Kundis Craig argues that in international environmental law, the role of the president may be overstated.  

Melissa Powers writes about the urgent need for deep decarbonization, with clear targets and strategies to achieve them, as Vanessa Casado Perez tackles the problem of rethinking water law to address inevitable conflicts over water shortages. Turning away from the public sector, Jessica Owley suggests an expanded role for private actors in forwarding the goals of environmental law. Importantly, Katrina Kuh challenges environmental lawyers look more closely in our mirrors to insure that embedded professional norms, practices, and structures do not inadvertently contribute to a “malignant normality” that deepens the climate crisis.   

We hope these essays disrupt your thinking in provocative, productive ways, and look forward to opening a dialog with you about how we can reframe, reshape, and ultimately disrupt environmental law to meet the challenges of our day.  

 

November 5, 2018 in Agriculture, Air Quality, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, North America, Sustainability, US, Water Quality | Permalink

Wednesday, February 26, 2014

Shell, the Arctic, and the Classroom

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.  

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff.  Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.  

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

- Michael Burger

February 26, 2014 in Biodiversity, Climate Change, Energy, Environmental Assessment, Law, US | Permalink | TrackBack (0)

Tuesday, June 4, 2013

ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court

Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.” 

The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.   

The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.  

As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.

I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties. 

Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind. 

-- Michael Burger

 

 

June 4, 2013 in Air Quality, Constitutional Law, Law, North America, US | Permalink | Comments (0) | TrackBack (0)

Sunday, June 2, 2013

Happy World Oceans Day . . . sort of

World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.

The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.

The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.

If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.

From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.

And law isn't doing a whole lot to stop that process, by the way.

The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.

And we're changing them. If that doesn't scare you, it should.

We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."

We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.

We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.

We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.

Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.

This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.

Happy World Oceans Day!

-- Robin Kundis Craig

June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 27, 2013

China Environmental Experiences, Post Script: Returning from China to the U.S.

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.) 

ELPB 1 INtro - QingDaYiLuMy 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.

Indeed, when we got home, the first thing we did was ate.  Picture5 And ate and ate and ate.  Especially fresh fruits and vegetables!  Strawberries.  Raw spinach.  Fresh-squeezed orange juice.  I have had a bowl of grape tomatoes on my kitchen counter every day since we got home, replenished like an open candy bowl.  Pesto, chevre, basil… flavors that have never been so missed.  Whole grains.  Sourdough.  Bread baked in my own oven, after a year in which nobody we knew even had one.  Tollhouse cookies, donuts...  my son has eaten a bagel every morning for months and they have not begun to lose their allure.  We knew that our Chinese friends return from the U.S. with exactly the same desperation for their own food culture, but that didn’t alter the joy of our own reunion.

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

Picture2I 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??  Picture1So 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.  Picture12 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. 

Picture11My 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, Picture6with 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. 

China Sept 2011 453 Qingdao cityscapeAmericans 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.  Picture8But 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.  Picture4Then 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.  Picture17 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.

 

--Erin Ryan

March 27, 2013 in Air Quality, Asia, Current Affairs, International, North America, Social Science, Sustainability, Travel, US, Water Quality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2012

Rethinking Sustainable Development, ELC Essay #4: Making Sustainability Count

Sustainability is an increasingly important concept in environmental and climate-change law. To the extent sustainability means that people should reduce their environmental impacts and shrink their carbon footprints, it seems that the increased focus on sustainability offers significant promise. But it is unclear that sustainability has that meaning; indeed, the term sustainability has become so ubiquitous and amorphous that it seems to have no common meaning. That might not matter very much when the idea of sustainability is used to promote gratuitous or individual acts of environmental stewardship. However, successful climate-change mitigation will require greenhouse gas emissions and atmospheric carbon dioxide concentrations to reach specific numeric levels. If governments replace quantifiable emissions reduction targets with ambiguous sustainability goals, this could undermine long-term efforts to reduce greenhouse gas emissions and mitigate climate change. Therefore, in the context of climate change, it is critical that governments make their sustainability programs count by measuring the benefits of their sustainability measures.

Over the past several years, a number of cities around the country have adopted climate action plans to reduce municipal greenhouse gas emissions. Many of these climate action plans focus on similar sectoral emissions-reduction strategies, such as reducing vehicle miles traveled by steering people away from single-passenger car trips; reducing waste-related emissions by encouraging composting and recycling; encouraging energy efficiency and localized renewable energy production; and encouraging other mitigation strategies such as tree planting, urban gardening, and other activities to reduce urban heat (and thereby reduce the need for air conditioning). Although these strategies may have significant potential to reduce urban greenhouse gas emissions and mitigate climate change, cities often fail to quantify the anticipated reductions the strategies will produce. Even where cities can point to emissions reductions they have achieved—for example, Portland, Oregon, has lowered its emissions to 1990 levels after pursuing elements of its climate action plan—they typically do not link emissions reductions to specific measures. Instead, cities have begun to promote the general concept of sustainability rather than develop specific strategies to meet the numeric metrics in their climate action plans.

Why should this matter? After all, if a city can show that it is simultaneously implementing a climate action plan, becoming more “sustainable,” and reducing greenhouse gas emissions, it would seem that sustainability efforts deserve praise. The problem, though, is that climate-change mitigation ultimately relies on numbers: to avoid temperature increases above 2°C, scientists estimate that global carbon dioxide concentrations must fall back to 350 parts per million (which may actually be too high), which requires quantifiable emissions reductions measured in tons of carbon dioxide equivalent. If cities are serious about mitigating climate change, they need to link their plans to quantifiable targets. Sustainability should not be exalted at the expense of governmental accountability.

That does not mean that sustainability (whatever it may mean) should not play a role in climate-change mitigation. Local climate action plans may help promote and reinforce behavioral norms necessary for societal changes that comprehensive climate-change mitigation demands. City leaders in Portland, Oregon, and New York City have tapped into the idea of sustainability to garner support for those cities’ climate plans, to encourage participation in the cities’ sectoral mitigation efforts, and to change the culture in ways that could lead to deeper emissions cuts over the longer term. The vague concept of sustainability seems to promote participation and buy-in from residents in those cities, because it provides city residents positive reinforcement as they work to improve their communities.

This concept of sustainability—that it serves to promote good will and emotional benefits—may seem weak. But research has shown in various contexts that positive reinforcement and messaging may do more to promote behavioral change than scolding and shaming do. For example, voter turnout efforts that emphasize the civic benefits and positive aspects of voting have a greater impact than efforts designed to play on voters’ fears and anger, contrary to some social scientists’ expectations. If government leaders use the concept of sustainability as a positive, upbeat strategy to enlist urban residents in climate-change mitigation efforts, this could help change societal norms. Changing norms, in turn, could allow city leaders to take more aggressive measures to achieve their quantifiable targets.

To make sustainability count in the climate change context, we should insist that cities establish quantified emissions targets and demonstrate that their sectoral strategies will achieve these targets. The concept of sustainability can help cities implement their climate action plans, but it should not displace a quantified approach.

-- Melissa Powers

December 6, 2012 in Climate Change, Governance/Management, Land Use, Law, Sustainability, US | Permalink | Comments (0) | TrackBack (0)

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.

Cherry Picking with the Xin Family 190I 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). 

Coal Power Plant (Wikipedia labeled for reuse)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). 


China Recylcing (Flickr - labeled for reuse)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).  China Sept 2011 399Even 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. Qingdao Brewery 071

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 Dylan's Kindergarten 003but 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 yearsUrumqi-Taiyuan-Qingdao (X-Country Flights) 101 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? 
Water Pollution (Wikipedia - labeled for reuse)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!”).  KFC ChinaBut 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.  October 2011 Zoo--Sunset through Ocean fogSo 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.]


--Erin Ryan

 

November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2)

Wednesday, September 12, 2012

China Environmental Experiences #6: Environmental Philosophy and Human Relationships with Nature

       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.  October 2011 Zoo--Sunset through Ocean fog

      
     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.  Chengdu 208But 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. 


      January - New Year and Yunnan 764 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.
      
       China Sept 2011 465Again, 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.”  Turpan Karez 2In 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.  Chengdu 430These 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.  Xinjiang - Tianshan Tianchi 046I 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.  Xinjiang - Tianshan Tianchi 070And 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.  Xinjiang - Tianshan Tianchi 071It’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.  Yangtze River Yunnan TrailAlthough 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.  Laoshan Mountain 088When 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.  Cherry Picking with the Xin Family 181Nevertheless, 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.]

--Erin Ryan

 

September 12, 2012 in Asia, Current Affairs, Forests/Timber, Governance/Management, International, Land Use, Music, Travel, US | Permalink | Comments (0)

Friday, July 20, 2012

Spending Power Bargaining After Obamacare

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 We the People 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. 

SCOTUSIn 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 and the Tug of War Within 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.

--Erin Ryan 

--A version of this essay first appeared on OUP Blog, and later on ACS Blog

 

July 20, 2012 in Cases, Constitutional Law, Current Affairs, Governance/Management, Law, Legislation, US | Permalink | Comments (0) | TrackBack (0)

Thursday, June 21, 2012

Obamacare and Federalism's Tug of War Within

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the We the Peoplerelationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.

Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?

To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning Flag Mosaicfrom that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.

As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and IJGAlocal government brings useful capacity to the regulatory table.

Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.

But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.

Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.

By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.

The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, Broccoliwould that be okay?)

Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)

This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.

A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.

Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.

The trick, of course, is that while all of these values are independently good things, they are Tug of Warnevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.

Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.

And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.

The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.

In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to Federalism and the Tug of War Withinfacilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.

--Erin Ryan

(An abbreviated version of this essay first appeared on RegBlog, and then on the American Constitution Society, on June 21, 2012.)

June 21, 2012 in Cases, Constitutional Law, Governance/Management, US | Permalink | Comments (0) | TrackBack (0)