Michael Livermore 0:10
Welcome to the Free Range Podcast. I’m your host, Mike Livermore. This episode is sponsored by the Program on Law Communities and the Environment at the University of Virginia School of Law. With me today is Jonathan Adler, a law professor at Case Western. He writes on environmental law, federalism and regulation, his 2020 edited volume Marijuana Federalism: Uncle Sam and Mary Jane was published by Brookings, Jonathan, thanks for joining me today.
Jonathan Adler 0:36
Good to be here.
Michael Livermore 0:38
So maybe we could start by talking about federalism a little bit. One of the funny things that I’ve noticed, and I’m sure you’ve noticed as well about environmental discourse is that many people’s views on federalism shift, depending on who is in power in Washington, DC. You know, when there’s, when there’s a Republican in the White House, environmentalists are big fans of the states and regulated industry less so and then that whole dynamic kind of flips, when power changes in the White House, but I kind of see you as a fairly consistent defender of the states. That, you know, that’s probably a simplification, but that’s kind of how I think of some of at least some of your work. So I just wonder, kind of just as kind of zooming way out, what makes states attractive and use for, for environmental policy?
Jonathan Adler 1:28
Sure. So, yeah, initially, you know, I certainly tried to be consistent and nice. It’s nice to see that that’s that, that those efforts are appreciated. You know, I think when we think about environmental problems, I think we can recognize that different problems occur at different scales. And in a world of scarce resources. And and that the fact that that scarcity applies to governmental institutions and the political process as well, albeit in in slightly different ways, it seems to me desirable, and you can certainly consistent as well with the United States is constitutional structure, to try and have environmental issues dealt with, at the level that they occur at, or as close to the level at which they occur as possible. So I think that’s, you know, a good, you know, so that the federal government, insofar as it is able to focus on issues that are transboundary, focus on issues where the states are less likely to be competent, makes sense. And that state and local governments, dealing with issues that occur mostly at the state and local level, or local and regional level, is generally desirable. I think some of the benefits of that are one, problems manifest themselves really differently in different places. One of the very first environmental issues I did a lot of work on was urban air pollution and state implementation plans and the like, and did some workout in in Maricopa County, Arizona, where Phoenix is and you know, air pollution. And Phoenix is very different from, say, Cleveland, where I am now. Part of that’s a function of geography, much drier climate. In Phoenix smoke, it’s a function of economic factors, the nature of industry, the nature of the economic activity, it’s contributing to the pollution, and so on. And as we make progress on dealing with environmental problems, those differences start to become more important, right? When we when you have cars without catalytic converters, okay, those regional differences probably don’t matter a lot. But when you’re talking about getting those additional increments of, of pollution reduction, being able to account for those differences, I think matters. So that’s one thing that I think, is important. Second, I think new environmental issues are not merely questions of science, there are questions of values and values differ from place to place, and priorities differ. And I think that allowing those value differences to matter, is generally a good thing. You know, different parts of the country have have different place different environmental issues, in different places, kind of in the hierarchy of of policy priorities. Another third reason I like it, and this is one that I know that that you’re skeptical of is experimentation and learning. Environmental issues are hard. There are a lot of things that we’ve tried in our history as a nation and that we’ve tried the environmental policy space that have not always worked as well as we’d want them to, or that have created incentives we didn’t expect and I do think that that is one value of experimentation is is that when experiments fail, and some percentage of them necessarily will, your downside risk from that failure is reduced because you’re not failing everywhere. And the fact that different places are trying different things generates information about how we can better address environmental problems in a way that’s consistent with the other things that we care about. And so those are some of the reasons why as a policy matter, I like decentralization now, as a legal matter. Sometimes the relevant law and doctrine supports a preference for decentralization or a rebuttable presumption in favor of decentralization, and sometimes it doesn’t. But I do I certainly have argued that law and doctrines supports more decentralization than we currently experience in most areas. And then in one area that’s kind of current now is related to preemption. I think it it certainly creates a stronger argument toward decentralization, certainly than at least some are arguing for that is to say some, some folks are now arguing for much greater preemption of state law in the environmental space than I think a current law and doctrine justify, even in some areas where I think the policy argument for centralization might actually be somewhat strong. Much of the law does so you know, so I’m usually in a position of saying, the law supports more decentralization, or should support more decentralization than we have. There are some areas now relating to preemption where we’re, I’m somewhat flipped. And then I think there are stronger policy arguments for centralized decision making, but weaker legal arguments for
Michael Livermore 6:55
and it’d be fun to get into, into the some of those preemption questions, maybe maybe in a little bit, just thinking about, you know, again, kind of just the big structure of of US Environmental Law. One of the things that is, is interesting, and you and others have noted is that the structure of the many of the of the laws, the Clean Air Act, the Clean Water Act, those are two of the big ones anyway, it doesn’t seem to allocate federal power where federal power is most justified, and seems, doesn’t seem to allocate power to the states for a state where state authority is more most justified. And so basically, there’s the federal government has a lot of really big role to play under the law, with pollution that is primarily local in orientation. And let’s just say at the very least, it has taken a very long time to implement effective interstate trans boundary controls on Transboundary pollution, even though that’s an area where, you know, the federal government has said has a has an obvious unnatural role. So, so, you know, this is peculiar. You know, I’d be curious, your thoughts on that, like, how did that come about? Is it we just stuck with it? Should we think about radically reforming the law to change that?
Jonathan Adler 8:21
Well, so there’s a lot there in terms of terms of how it came about. I mean, I’ve written some on this, and I have a book manuscript, I’m trying to finish that, that tells my version of this story. And I think when the federal government really ramped up its presence in the environmental space in, you know, beginning around in the late 60s, and through the 1970s, there wasn’t a lot of thought about jurisdictional choice. There was rather dramatic increase in the demand for governmental action to reduce pollution and to protect environmental resources. And there was a dramatic increase at the state level, there was also a dramatic increase at the federal level, and there wasn’t a lot of attention to Okay. How do we rationalize who does what? And and it’s similarly on the constitutional side of things, which as you know, I’ve written about you there. There were constitutional issues. Folks were focused on what the environmental laws were raising, but they weren’t the federalism issues. Right. So the Council on Environmental Quality poses this book length report on takings and how environmental law could be frustrated by takings claims. The idea that that enumerated powers or sovereign immunity or common hearing, or what have you would be obstacles really wasn’t or conditional spending or what have you wasn’t really thought about. So it was kind of an accident, I think about why we got it the way we did. I also think politically, you know, as a consequence of the civil rights movement, there was a lot of skepticism about state and local governments that was very well deserved, right and the line, I always use this if if states couldn’t be trusted to protect portions of their own citizenry. Why would we expect them to be particularly proactive about protecting environmental resources and the like, you know, states, many states have shown themselves to be some combination of of incompetent or malicious when it came to fulfilling your obligations. And so arguments, oh, states can be trusted really didn’t have a lot of purchase at the time. And again, that I think that’s very understandable and and, you know, given the time period justifiable, right. And today, the state level interest in environmental protection is, is much different than it was then. And so what we might think states would do today is not what we might have thought states would have done and say, the 60s and 70s. So that’s kind of how we got here. You know, as you noted, for a long time, the federal government largely ignored or in some respects, even frustrated efforts to deal with interstate issues. That’s changed some, especially under the Clean Air Act, the EPA has been more willing to use those authorities courts have been more willing to recognize the authority. And so you’ve had the SIP call process in the section 126 process and these various processes, though, allow downwind jurisdictions to get some degree of protection from upwind jurisdictions, there has been a lot more action there than there had been a lot more efforts to control across a pollution. You know, I’m not sure that that’s the focus, it should be, or it hasn’t reached the proportional focus, I would argue it should have in terms of what the EPA does with air pollution, but it’s certainly improved. And I think there’s there’s certainly the room for, for doing more, both to deal with interstate pollution, as well as to do some other things that I think the federal government has a comparative advantage in doing, which I would include into that a lot of data collection and scientific research about understanding both the nature of pollution problems and how we address and their consequences, and then how we address them. You know, there are economies of scale in in, and there’s no reason to make states duplicate that sort of research. And a lot of that work would actually also make it easier for states to play a larger role. In it a little bit of my work, I’ve tried to pay a little pay some attention to to how was at the federal government can do things that will reduce the costs for for states at being more effective environmental stewards. And there’s room there in terms of what we do, as a practical matter. And, you know, I’m certainly not going to be given complete control over environmental policy, environmental law. But also, you know, we’re not likely to get revolutionary change, and we’re not likely to get revolutionary change that is, is, you know, perfectly well thought out what I’ve argued for, and is that it would be nice to create a mechanism whereby we could facilitate a reorientation of priorities. So I’ve argued for a mechanism where states could seek to essentially opt out of federal supervision are superintendents or imposition of standards within the state within those states, within the framework of the existing environmental laws. And the My belief is, is that if states, take that that opportunity, and do so in a way that people find to be congenial and effective, well, then more states will follow suit. And if if some states take that opportunity, and we decided to mistake, well, then we still have the existing architecture of environmental, federal environmental law to fall back on. The other thing I would certainly do is, if is, you know, if Congress could, you know, insofar as it’s appropriating resources, we know that EPA never has the resources to do everything that the laws say EPA is supposed to be doing. And so the EPA is always engaged in some amount of triage. I think Congress could certainly facilitate the process by explicitly devoting greater resources to those areas where the federal government has a comparative advantage and the two biggest buckets there would be things that have cross boundary effects. So air under state air and water pollution, and then increasing the knowledge, base and technical capacity that would make good give states more tools and more ability to do the things that are truly in their backyards more effectively. You know, a lot can be done in the budget process just to put more money in those buckets and less money in some of the other buckets. So those are the two things I would do. If it were up to me that I think are realistic. If the last thing I’ll say is, it would also just help, I think, to have an EPA Administrator, who if they are talking about these issues, is actually following through in a somewhat consistent way. I mean, I’ve argued that, for example, the Trump administration missed some opportunities in this regard, there was a lot of rhetoric about federalism, it coming from the EPA. But if you actually look at what it did, it was not a principled federalism agenda, it was kind of an ad hoc, were against pollution control. Agenda, just cloaked in in the rhetoric of federalism, and I think that’s, that sort of thing is not helpful. It doesn’t yield good policy. And it it doesn’t help us, it doesn’t help set the tone of thinking about okay, well, where do we need the federal government? And where can the federal government back off to some degree?
Michael Livermore 16:34
Right? Yeah, no, it’s I mean, I could imagine it being very frustrating actually. Because, you know, then then the whole, what happens is the language around federalism gets associated with the kind of anti pollution control agenda that, you know, it doesn’t have to be that way. I mean, it would be very interesting to him, it’s kind of hard to imagine, but it would be very interesting, as a political move for an administration for an EPA Administrator for, you know, coming, even coming from the White House to say, we’re going to ramp up our emphasis on, you know, interstate pollution, pollution that, you know, water pollution, we’re gonna focus on, you know, watershed management, and, you know, where it crosses state boundaries, and we’re going to focus on, you know, pollutants that cross state boundaries, while at the same time, you know, we’re going to bring the states in more in a more central role on, you know, pollutants that are these problems that are more local in nature. It’s just kind of hard to imagine either political party right now, or the leadership of either political party, being able to do that in a way that anybody would trust on either side.
Jonathan Adler 17:47
I think it’s hard. I mean, I do think that that. I mean, I mean, the Trump administration is, in some respects, I guess we generous, but, but I do think there were some opportunities there in both the Bush administration and the Trump administration to try and do that. You know, if if you are on the one hand saying, okay, the EPA is not going to be imposing such great pressure on certain states. Well, then just, you know, let California do its thing, right, but don’t don’t at the same time, try to reinterpret the Clean Air Act to constrain what California is doing, or, you know, in the case of the Trump administration, right, send these threatening letters saying, oh, yeah, we finally noticed that, you know, you’re not doing enough to control particulate pollution in this part of California, where there is no claim of any kind of trans boundary effects. But this is just an opportunity. I mean, it certainly looked like nothing more than an effort to beat up on California, because it’s California, and that clearly doesn’t help. Right. And, you know, I do think there are some opportunities there. I also think that, you know, at least in some parts of the country, I mean, I live in Ohio, Ohio is a fairly red state. But, you know, Ohio cares a lot about the Great Lakes cares a lot about maintaining and improving water quality. And, you know, I don’t think there’s anything inconsistent with saying, you know, we don’t want the EPA interfering with things that that are, are localized issues. But we would certainly like support and and obstacles to be removed when it comes to figuring out how we in Ohio can can ourselves do more for the Great Lakes but also work cooperatively with others, Great Lakes states to ensure these resources are protected. You know, there will still be conflicts, right? When, when EPA says Ohio you’re you’re spewing a lot of stuff that ends up in New York and Vermont, Ohio is not going to like hearing that, but I would think there’s There’s actually more room for that if EPA isn’t at the same time, obsessing about something that doesn’t have those sorts of effects. And, you know, as I keep mentioning, if EPA, at the same time is doing things that that help increase state capacity, then there’s less concern that, you know, Ohio is not dealing with some localized problems, because they don’t know any better or because they don’t know the capacity. It’s really a question of, of something else being prioritized more. So maybe I’m just too optimistic. I’d like to think there are opportunities there. I suspect that you’re more likely to see it from a Republican president, but maybe not. So, you know, I would argue that that the closest we’ve had to a real effort to to have meaningful push meaningful federalism in the original space probably occurred under the Clinton administration, programs like the nips program, which didn’t go as far as they could have. You know, I think we’re a lot more positive rather than much of what we’ve seen since from either party. So I hope the opportunities are there, I guess I
Michael Livermore 21:21
would say, Yeah. And it’s interesting, just, as you mentioned, the Clinton aministration, they more broadly adopted a lot of language on federalism, there was a federalism executive order, you know, there was there was a couple of things that they did, um, again, you know, whether all that how that all that actually cashes out is a different question. But certainly they were willing to talk about federalism in a way that, you know, it’s interesting, just, it is interesting. Yeah. So, so one question, you know, this, I mean, we could, we could keep talking about physical and actually would like to, because it is such an important component of, of US Environmental Law. One concern that, you know, my students will often raise when I talk about environmental federalism, and you discussed as well, when you were talking about just the kind of origins of the more nationally oriented system that we have now is, you know, issues around kind of justice, or public choice failure, or that kind of thing where even, you know, even if a harm is internalized within a state within jurisdiction, obviously, there’s going to be some groups that are more or less exposed to these harms. And that we’re, we might be worried about the state’s willingness to, you know, to address harms when they fall on, you know, certain groups of people. And so I guess, you know, and there’s a lot of emphasis these days, a renewed emphasis on these kinds of environmental justice issues. So I’d be curious what your thoughts I find it hard to think about these things. I mean, because, you know, they, they do run kind of, because then there’s always like, well, how good is the federal government at addressing? And so on? Yeah. So but yeah, I’d be curious to hear your thoughts.
Jonathan Adler 22:59
So I mean, so so some of my react responses might be predictable. And then some, I hope, at least or less so. So I mean, the first question, I think, always has to be compared to what I mean, yes, we might expect state governments. In fact, we should expect state governments to often not do everything the way we would want them to. And we would expect government failure at the state level. But we also expect that at the federal level, and and I think that I have found theoretical claims about why we would expect failure to be more systematic at the state level than the federal level, to be unconvincing. And I’ve found the empirical evidence that that the failures are more systematic at the state level to be lacking. There are plenty of examples of federal environmental policy, including things done by the EPA and not not things the pace is forced to acquiesce to, but the EPA does itself that are our perfect case studies of public choice and action and, and and agencies, regulatory agencies doing the bidding of interest groups, as opposed to those they’re supposed to be helping and one could throw in this is the most recent example the the desire to increase the the the ethanol waiver to go up to E15. That try and reduce gas prices. I mean, that environmentally, that’s crazy. And the EPA has done that sort of thing, a lot. The Clinton administration that were that we were just praising, had a similar ethanol giveaway, that it tried to justify under the Clean Air Act that had that was thrown out in court. And a lot of the you know, we’re talking about things that affect that contributed things like air, urban air pollution, for example. And we recognize that urban air pollution is not evenly distributed. We realize that the sorts of effects can have or these sorts of policies can have disproportionate effects on vulnerable communities. um just like other ones. So there is the “compared to what?” question that I think we have to ask the second thing is, when it comes to what we might loosely characterize as environmental justice concerns, more broadly, the issue that I the issues that I think are the most important and this may be my, a function of the normative framework that I tend to operate out of, I’m most concerned about autonomy and and choice and consent. More so than I am about the resulting distribution. Wealthier communities are subjected to less than poor communities are. And that’s true, whether we’re talking about environmental problems or any other social bill. What’s really problematic is when that’s imposed, as opposed to a trade off. And if one looks at the history of environmental justice one sees examples of poor communities being imposed upon other levels of government, citing away site, or landfill, or diverting enforcement resources or whatever else in ways that are discriminatory or, if not in purpose, certainly in effect. But you also see examples of communities seeking opportunities and being denied those opportunities. When I worked in DC, there was a big effort in Virginia, to bar the importation of waste from New York, one of the Virginia papers and publish this picture of a landfill with that was when I left New York th t shirt kind of conveniently placed in the middle of the picture. And the Virginia legislature was going to pass this this one and you know, I was involved in this issue a little bit because there were efforts at the federal level to authorize states to do this sort of, to, to impose these sorts of restrictions on on importation and exportation. And when towards you, Virginia was considering this bill, the community were surrounding one of the landfills at issue showed up at the Statehouse. And this was a predominantly minority community to say, What the hell are you doing? Yes, this facility is in our community, but this facility is paying for things that you the state legislature aren’t paying for. It’s providing resources that are going to help us from a healthcare standpoint, education standpoint, that you in the legislature aren’t paying for, why would you deny us this opportunity, if this is something that that our community actually chose and consented to? And, and, you know, there were powerful speeches by by pastors and others from the community objecting to this policy that was postponed going to be done in the name of environmental justice, but that was actually disempowering to the community. So I worry a lot more about kind of what’s happening, is a community making a choice based on that community’s values and its priorities? Or is that community being imposed upon, I see much greater justification for imposition in the second context. And related to that, you know, when it comes to kind of what the federal government’s role should be more broadly. You know, there there are constitutional framework does recognize, it has recognized since what we often call the second founding, that the federal government has a lot more power to intervene when in what we would otherwise consider to be state or local affairs, when state and local governments are not observing and protecting the rights of portions of the citizenry. And that can occur in the environmental context. And if it does, I think that’s a justification for federal intervention. But it doesn’t justify to me kind of broad prohibitions on certain sorts of activities, or activities purely based on estimations of the impact, it justifies more targeted interventions where we see that that communities are being imposed upon as opposed to making choices that we might disagree with. And that’s, you know, can be a hard balance the draw, but I think I think it’s an important one. And I think, if one looks at at the way environmental burdens have been imposed, disproportionately, one can I think, try and separate out where it’s been a function of, of communities being imposed upon or being deceived or what have you. And and I don’t mind the federal intervention in those in those contexts, provided we have reasons to believe the federal intervention will in fact, be better. You know, there are times where we where we have to worry about that. And there are even examples of, of interest groups manipulating these sorts of concerns and narratives for their own for their own peculiar interests. And we have to be careful about that. Right? The regulatory process, the administrative process is, you know, systematically advantages, well resourced interests. Some work that when he Wagner has done has shown this in terms of who participates in the process. I think it’s somewhat intuitive in the sense that, you know, the average person is much more likely to know how to show up at a local town meeting than they are to know how to file a petition with EPA, or to to effect a rulemaking or what have you. And so we want to be careful about thinking the answer to these problems is to shifting, shifting questions to an administrative regulatory process, because that process isn’t going to be particularly equitable. And it’s manipulable. Right, that we know that if an interest group thinks it can cloak its agenda in, in more progressive garb, it will do so. And we have examples of that happening. You know, the, there was a fight between cement kilns and hazardous waste incinerators. And one group one side, paid to create all these quote unquote, local groups formed around the kitchen table, and to file lawsuits, and to file administrative complaints and so on. And in the conduct of litigation that eventually came after that, you know, this was totally paid for by by the other side, this had nothing to do with local communities, really objecting to one source of emissions versus the other it was, you know, the weaponization of these sorts of concerns by economically motivated parties, and we have to at least be concerned about that sort of thing, because it happens.
Michael Livermore 31:46
Yeah. I mean, it’s an interesting, you know, again, just thinking broadly about kind of political framing, and because that’s obviously the lens that through which all policy is refracted is, you know, to a an agenda that was to say, we’re going to focus on Interstate issues, you know, big picture things, and environmental justice is, and then, you know, where there aren’t environmental justice concerns in particular than, you know, we’ll be more amenable to states, kind of two digit decentralization more generally. So it’s an interesting, it’s an interesting would be an interesting agenda. I don’t think there yeah, this is not one that either political party has adapted so far. It’s, it’s, it’s clearly a mash between the two. And sometimes those can be really successful. And sometimes they just they never come about, right. One thing I thought we might return to is the the point on experimentation, and I can just be curious to hear your thoughts. So you mentioned that I’ve written a little bit of skepticism about experimentation. There’s kind of two parts to that. So one is, you know, in this paper, I talked about concerns that people can learn good things, or they can learn bad things from experimentation, right? Powerful organizations can learn how to exploit political processes to gain success, just as well as policymakers can learn. But one thought, one concern, I think that there has been this not just mine, many others have have discussed is, this has to do with with states as the kind of driver of policy is that you, it’s actually very, very hard to learn anything from state variation, which I’m going to call variation rather than experimentation. Because experimentation kind of implies, like a controlled environment. Like where you try one thing, and you hold other things constant, and that’s the kind of the problem with states is states select into what their policies are going to be. And so it’s very just hard to learn, because everything’s confounded because you’re selecting into the treatment, or you’re selecting into the, into the policy. And you can imagine a coordinated regime where a bunch of states get together or the federal government for that matter, and randomly assigned policies to different states or something like that, to see what their effects were, if we don’t do that, it’s a little hard to imagine us doing that in the states that we would learn a lot if we did. So. So I’m just curious what your thoughts are on this problem of, of selection, when states are the are the are the are the ones who are kind of making decisions about the policies to implement in the ways that interferes with our ability to actually learn from this variation that we that we see.
Jonathan Adler 34:34
Well, I mean, I agree, it’s, it’s a problem. It’s a complicating factor as is the fact that states are not equal in terms of their preferences. So it’s not, you know, it’s, it’s my claim is not that Oh, California will do something and if it works, oh, then every state will rush to do a California because some states will look at what California does and say, No, we don’t we don’t want to do that. So it’s imperfect, right? I recognize So that and you know, another complicating factor is that the federal presence in so many environmental areas, including areas where we would expect states to have a comparative advantage, distorts what states do. And I think it distorts what they do. Both as a practical matter, but also politically, and I, you know, I have a, I’ve written a paper that has a model that that, that, that that documents how federal even partial federal involvement in that field can prevent states from doing things they would have done otherwise, that would actually increase the overall level of environmental protection. And, you know, it’s a type of crowding out sort of model. So I realized complicated and now, I do think that that is, one thing that’s important to know is that, from the empirical literature we have, which is not great, but it’s a lot better than you would know from from looking at law reviews, that is to say, the vast majority of empirical work in economics and political science on these questions, appears nowhere in in in in law reviews, unfortunately, suggests that that some of the downside risks that we’re worried about things like race to the bottom, we find very little evidence of, and we find areas in which we actually find the opposite pattern that may be historically contingent, ie a function of a 21st century environmentally aware populace, and is not not a claim that we would have seen that absent of federal involvement in this in the 70s, and 80s, and so on. We also see in areas where the federal government is not involved some evidence of replication of policies, in neighboring states in in areas where we would expect states to be very sensitive to whether or not policies are doing what the States expect them to do or want them to do. So a Paul Teskey has a book regulation in the states that documents this in a couple of areas, including some environmental areas, and the effects not huge. But it shows that, you know, when one Midwestern State does something for groundwater, and it seems to be cost effective, and producing what the state wants, the likelihood that its neighbors do something similar goes up. We’re not entirely sure why that is to say, it’s been very hard to document what The precise mechanism of that is. But we do find we do see evidence that’s suggestive of that, um, you know, one reason I, I’m skeptical of kind of the, let’s centralize everything and plan the experiments is, some of the reason you get the variation is because different people want and try different things. And so you’re not going to get that same impetus from a centralized location. A lot of it, I think, comes from, you know, a state deciding that it wants a different combination of goods than it had. So I’m going to take Virginia where you are, I mean, there was a period of time where Virginia was much more agriculture, culturally oriented, and much more solicitous of agricultural interests and say, meat packers and the like. And, you know, when I lived in Virginia, that was when, especially in Northern Virginia, the tech boom was going on, and a lot of the new voters coming into Virginia, wanted economic prosperity, but didn’t want a state that was just going to give the meat processing plants, whatever it is they wanted. And so Virginia had to figure out, okay, how can we provide the environmental amenities and the level of thermal protection that this new influx of highly educated affluent voters and the companies that want to employ them want without destroying our economic base? And so there’s pressure to come up with something new that perhaps reconciles that trade off between economic and environmental performance that that might otherwise be limiting? And I don’t you only get that from a bottom up, or it’s hard to replicate that if it’s not coming in a bottom up way. And, again, the claim is not that every state that deals with that, and struggles with that is going to get it right. But it it, I believe that we’re more likely to get it right more often in ways that were ultimately satisfied with that way than the alternative. Which is again, the “compared to what?” point right, yeah. I mean, I think when you look at things like fracking and other things, you see the same sort of thing, right. In Ohio, the the the environmental other effects of fracking that became really saliently important in Ohio in local communities where we saw a lot of hydraulic fracturing were different than what the national activists were focused on and arguably far more important for quality of life and environmental protection. I mean, a lot of stuff that would might not have been obvious roads, you have these areas where the roads were not built for the volume of truck traffic, they were suddenly exposed to that that’s a public safety issue. That’s a water quality issue from runoff. And it can be an air pollution issue if you if you’re dramatically increasing air pollution sources in the area. That’s not what national folks wanted EPA to focus on. But that’s the that that that made a huge difference, noise. Big Issue. light at night, during drilling operations can be a big issue. I mean, and a state like Ohio that wanted hydraulic fracturing to occur. had to figure out how to deal with those those issues, how to deal with maintaining simple road infrastructure to prevent the environmental harms of of that would result from the degradation of that infrastructure. That knowledge and understanding and focus on that could not have occurred now to see us fracturing fracking as a last example, and return to something brought up earlier. Ohio was not going to care about fracking, its contribution to methane emissions and the effect on the global atmosphere. It was not going to be concerned about whether or not there were emissions from his from his operations that we’re affecting Pennsylvania or New York, or what have you. And that’s where you would expect that those bottom of pressures and knowledge creation to fail in a systematic way. That to me is, is kind of what we’re I would flip the presumption for for being bottom up versus top down, because we have reason to believe that the failures won’t be kind of occasional, but will actually be systematic. And and that should affect the way we we think about it.
Michael Livermore 42:01
Yeah, you know, I think, you know, part of what has affected the way we think about this set of issues is around learning and all that is that, you know, the original kind of Brent ICN metaphor of laboratories of democracy, I think, was just very inept. Course, that we’ve had some time to think it over. And because states aren’t laboratories, right, they’re there. In the the analogy of experimentation or the term experimentation, I would think we should be talking about innovation, rather than experiment. Yes, fair
Jonathan Adler 42:31
innovation discovery. I think I mean, I mean, I think the discovery part is part of it, right? Because who is part of what we’re learning is what matters when I’ve argued, and some people find this convincing, some don’t, that you look at a lot of environmental issues, and our discovery of the nature of that problem, and why that problem mattered, and why we should do something about it. For most environmental issues occurred on the frontlines at the local level, first, right. State wetland regulation began before federal wetland regulation, local wetland regulation began before state whaling regulation, private efforts to preserve habitat for migratory waterflow, which wasn’t at the time even thought of as wetlands because we didn’t call them wetlands back then they were swamps and fence and marshes and whatever was even before that, and part of what that reflects, I think is is a is a bottom up, I guess you could characterize it as a hierarchy and discovery process. I totally agree. And take your point. It’s not experimentation. It’s not a laboratory. It’s not something controlled. In that way. Or, or systematized in that way. It’s really more of a, of a discovery process that results from people being aware of the world around them, which and we tend to be more aware of our more immediate circumstances. And that, that environmental, the history of environmental law is filled with examples of that trickling up, you could tell a similar story with air pollution and and the history of the progressive smoke control movement, which had largely been forgotten. I mean, a couple folks, there’s been some recent work documenting this history, which is fascinating, which is all about local communities, realizing, hey, wait a second. You know, where we cite, factories matters, how we produce how we power our rail lines matters for our local community. And that was long before people were thinking about it as a broader national issue. But again, not experimentation so much as bottom up discovery and innovation.
Michael Livermore 44:38
Yeah, yeah. I mean, it’s interesting that you raise that is that there’s something I’m not sure this is a this isn’t a fully baked idea, but there’s something about where we discover the harm, and you know, where it will be best addressed. So just for example, you know, climate change is not something During the relationship between greenhouse gas emissions and the local climate is not something that anyone is going to be able to figure out on their own. depleting the ozone layer is not something that a local community can figure out. You’re just not going to observe it. Because there’s no fabric between what you’re doing right. And so so that’s just interesting that, you know, whereas a local community can tangibly see local benefits of preserving wetlands or moving where, you know, adopting pollution control on, you know, some kind of stationary source, there’s a remediate feedback there, where, as in the case of climate change is just as you were mentioned, with respect to methane, even a potent greenhouse gas like methane, it’s not like a local community is going to see the effects themselves of their methane emissions, because they’re spread out over the whole planet.
Jonathan Adler 45:46
Exactly. Exactly. And you know, and I’ve argued that one of the reasons we have seen over the last 20 years so much state level experimentation on climate is not because states can do much about climate change on their own or do much about the local climate effects until very recently, when when adaptations become more of an issue. But rather, what I’ve argued is, is is a function of two things, right? One is, there is a demand for environmental action at the state level, and there are both economic and political reasons why state level policymakers should have an incentive to focus on areas where the federal government is doing less independent of whether or not that’s a smart policy thing to do. And so I’ve argued, that’s why you’ve seen so much state level innovation on climate change, because they can’t, they don’t have the same degree of room to innovate and to, to, to be active in a meaningful way, on other other things, because the federal government has such a large presence. And even if a state could do something that helps on the margin, the ability politically to get credit for that marginal improvement in an area that’s already occupied by the federal government is so small, that that what policymaker is going to do that. And again, I have a model that, you know, tries to, to formalize the observation, but but that I’ve argued, that’s why that happened now, you know, we still may discover interesting things about how to help mitigate climate change as a result of of this innovation and these efforts. But I do think it’s kind of been mis placed in that, you know, in that the federal government has done so little in an area where it clearly has a comparative advantage as compared to state and local governments. But in its absence, you know, state and local governments have kind of filled that, that vacuum. And it’s kind of so we’ve kind of had a bat in the process has kind of been operating almost in the inverse of the way we would like it to be, I would like it to at least,
Michael Livermore 48:05
right, right. And then when, you know, this kind of maybe just, just good thinking kind of, like really big picture kind of questions in this in this area. Is you mentioned state and local governments, you know, we you know, and that and that’s true, right? There’s, there’s multiple levels of decentralization in the US that the Constitution, you know, has the, you know, obviously, the states have a particular status in the Constitution that, you know, counties or cities don’t, you know, we’re not going to be revising that element of the Constitution anytime soon. But I’m curious what your, what your thoughts are on kind of federalism versus localism you know, kind of decentralization more broadly, because we do sometimes see states interfering with the ability of localities to, to experiment with not use that word, nuance to innovate, to try different things, or just to adopt different policies based on local preferences or whatever. States have always struck me actually, to be honest with you is somewhat peculiar. policymaking units, right that cities and counties or or regions are kind of more natural. We have the system we have, but I just be curious what your thoughts are more generally on, you know, is there anything that we can do to encourage more localism or encourage more decentralization or are we happy with states as the as the kind of decentralized agent, you know, default in our in our system? Yeah, man, kind
Jonathan Adler 49:34
of It depends. I mean, we those are the lines we’re stuck with. You know, I think that greater wrote, you know, for most issues, a presumption of greater state leadership as opposed to federal leadership, you know, and I think it’s justified, not because the states are the best units, but because, for I would argue a large proportion of environmental problems, they are better units than if Federal Government and their reading units in two directions are one because they’re smaller. And so the possibility of more local innovation and leadership is possible. But also because if we’re talking about a regional problem, we might be able to assemble states in a way that’s still preferable than it being a national issue. So we see this around the Great Lakes, we see this with the Chesapeake Bay compact, we see this with things like Lake Tahoe compact. And on my research agenda, not that I’m going to get to anytime soon is trying to think more about are there ways of of augmenting what we do in terms of regional stuff, where we’re where the stakes aren’t too big, but too small? Your question was about where states are too big, you know, as a policy matter, my preference is applying the same sort of presumption that, you know, as long as localities aren’t exporting harms, or externalizing harms onto their neighbors, downstream or downwind, I would like to let them do their thing. And again, part of that is because different communities are going to have different priorities. And especially we’re talking about land use, there is no one size fits all that makes sense. And I think we benefit from different communities being able to have different priorities. I also think that we’re local communities are given autonomy, and control, they often do discover and innovate in ways that that have important environmental benefits. At as a legal matter, the extent to which that’s viable, really varies from state to state, because, you know, some states have have a traditional and a doctrine of Home Rule, some do not, the details of how home rule actually, is operationalized can vary. So legally, that can be hard.
But in principle, I think that, that it’s a good, it’s a good thing. And I think that that, you know, you see
you when you look at things like, you know, ballot initiatives for green space and the like, you see that oh, you know, the extent to which community local communities are willing to make environmental protection a priority is, is often higher than we give them credit for. We just don’t, you know, we we just, we channel that energy into some very narrow spaces, right. So that you know, so you can do a green space initiative, you might not be able to do other sorts of things. So as a policy matter, I would I would love to facilitate more localism. You know, as well as more as more private efforts where where they can happen, I think, when you look at things like ever, you know, the the was it the American, I’m not gonna further name the group that’s, that’s trying to restore the great American prairie, largely through purchases. You look at the history of land trusts and the like, here in Ohio, the Western Reserve Land Trust, there are a lot of opportunities there that we could facilitate as well, that build upon localism, in a lot of cases, I think we could definitely emphasize that a lot more. And in many cases, that would be facilitating local communities to do far more than they do now and to be far more protected than they do now. And and we learned from that, right, because when communities do that in a way that doesn’t cut off economic opportunity in the like, I would like to think that other communities would then want to follow those models.
Michael Livermore 53:36
Yeah. So there’s maybe like a something we raised earlier, I didn’t want to totally to drop it. So maybe now would be a good time for us to return to it is this, you discuss the kind of more legal question, we’ve been talking a lot about policy questions, that tends to be my orientation is around something actually a bit of a bit of innovation coming from a lot of municipalities. It is this litigation over climate damages and suing oil companies, and there was a recent development, the Second Circuit decision that, you know, is pretty was pretty much close the door and that circuit for these kinds of claims. And, and one of the things that there is a you know, it’s a little in the weeds, but just to kind of get it on the table. You know, there’s a there’s a Supreme Court decision that found that the federal common law was displaced by the Clean Air Act, you know, in such a way that states actually in that case, we’re not going to be able to use the federal common law as a way of litigating the question of climate damages. Or actually, in that case, they were looking for injunctive relief from the courts. The but what was kind of funky about this Second Circuit decision is that the municipalities were bringing these claims under state law and This second circuit somehow got us to essentially present a preemption like result. And I guess the question is, you’ve written a little bit about this, as you know, it’s it’s kind of a technical, a technical matter, but I’m, I think it’s worth maybe explaining a little bit the stakes of the difference between like, say, the federal common law and state common law, displacement versus preemption. And then some of you maybe just what your thoughts are about what happened in the Second Circuit?
Jonathan Adler 55:29
Yeah, I’m not a fan of the Second Circuit opinion. I’ve made I’ve made bad jokes about the fact that it came out on April 1. But, um, so yeah, so you know, generally when for the last 100 years or so, courts have federal courts have taken the position that federal common law is disfavored. The idea is that federal courts are not common law courts that are really supposed to be in a position of discovering or developing or planning we can have that’s a whole separate discussion, a common law, that’s something that occurs at the state level, and that where federal law is necessary for rule of decision, the preferences for legislation. And so a consequence of that notion is this idea of displacement, which is in the past, where where when two states have a dispute with one another, they might be able to raise a federal common law claim. The idea is that there’s any legislation in that space, that that federal common law has been displaced in favor of whatever the statute does or does not do. And so that Supreme Court is has it first about about water pollution in I’m going to create the race in 1981. In the 80s, and and now said the same thing for air pollution and doctrinal leave. That’s that part’s I think unobjectionable.
Michael Livermore 56:58
It’s your decision in the Supreme Court. Right?
Jonathan Adler 57:00
We went once the court said that about about about the Clean Water Act, there’s no reason why that wouldn’t be true, the Clean Air Act as well. The preemption questions, a different question, because preemption is always about state law. And that can mean preemption of state regulations adopted pursuant to state legislation. And it can also mean state common law. So state tort law on a nuisance law. And generally there we’ve we’ve adopted a presumption against preemption, the idea that states are One consequence of state sovereignty is that states are themselves sources of law, both those both positive law or public law on the terms of statutes and regulations, but also in terms of the common background common law. And a lot of municipalities have started finally suits claiming, hey, look, we are spending money dealing with the consequences of climate change, we are dealing with flooding, we are dealing with the changes in air pollution changes and other changes that we have to deal with, I mean, weather related, flooding related and air pollution writers, some of the big ones, but we’re investing money to deal with the the the the current unexpected effects of climate change. And so they’re filing tort suits against those that produce fossil fuels are those that market fossil fuels and so on. And they’re, you know, these are aggressive state law claims. And they may or may not be, you know, from from a tort law standpoint, they may or may not ultimately be good claims and strong claims or not. And there may be questions down the road about whether or not recovery can be obtained for actions that occurred out of state. Those are all, I think, legitimate questions. What occurred in the Second Circuit, and I’ve been critical of is federal court saying the very nature of the claim is inherently federal, because it’s climate change. And so therefore, you cannot bring the claim at all, even though you are basing it and grounding it in in state common law. And I think that that’s doctrinally problematic under preemption law under a particular case called that I always mispronounce International Paper versus Goulet. And I also think in the Second Circuit case, he was also based on a kind of just a gross mischaracterization of the nature of state authority to deal with environmental problems. And the New York case was filed in federal court. So there was a clean holding on the preemption question there. There are always other cases that get even more complicated than we’ve already addressed, because they’re filed in state court and the question is removal and the way preemption claims apply in in in removal, you know, it unless you’re a real civil procedure Maven, it’ll make your head hurt. But I, you know, I’ve argued that you know, there to argue preemption, you really have to argue that Congress came in and told states they had to stop. And we see that in some areas of law, not very often in environmental law, right? We see it like with regulation of automobiles, right only, you know, we see it 10 standards for oil tankers. There’s a there are pre emptive, some Pesticide Regulation is pre emptive. Typically, its product regulation like that. That’s pre emptive. If we’re going to generalize, but dealing with pollution and its effects, we generally don’t preempt. And we place a high burden on on those claiming preemption to show that Congress has in fact preempted. And I’ve certainly argued that that while I would argue that dealing with climate change at at the national level is better than dealing with it at the state and local level, and would support policy efforts in that regard. Unless and until Congress steps up to that plate. There’s no basis for holding these these suits as preempted, and they will rise or fall, I would argue or should rise and fall in their own internal merits as a matter of state tort law. And and courts should not be welcoming to the claims of oil company defendants that that these claims are preempted. Even if you know, in my perfect world, would I would I would I trade a carbon tax? For among other things, preemption of the some of these sorts of claims? Yeah, probably would. But, you know, that’s, that’s a legislative judgment. Right? That’s
Michael Livermore 1:01:33
a different? That’s a different question. Right.
Jonathan Adler 1:01:36
So that’s kind of what’s going on there. And and it’s interesting, because you have folks that we often expect to be sympathetic to federalism arguments to, in fact, being sympathetic to what I would argue are fairly aggressive federal federal power arguments, because they they rely on this assumption that even when the federal government has done very little, it should be casting this big shadow across state level innovation. And you know, some of my friends on the right sometimes forget, you know, litigation, including aggressive tort litigation, is a very innovation discovery oriented process. Just like there can be good and bad regulations, there can be good and bad litigation, and we learned something about it. And litigation can be information forcing, in ways that that we should be reluctant to squish. So
Michael Livermore 1:02:33
yeah, that’s me. There’s some interesting stuff to talk about with respect to litigation, actually, in the kind of tort system and how that feeds in but we’re running out of time. I don’t know if we can, we can get into that. So I just have kind of one one final question for you. You’ve been generous with your time that actually, you know what the comment that you just made kind of circles us back to the where we kind of started, which is the degree to which, you know, folks views on on federalism tends to, to go with the wind, depending on on the outcomes of particular disputes. And I guess that kind of just leads me to the to my final question for you, which is, you know, we circled around this issue of kind of polarization on environmental issues. And, you know, the degree to which that that’s hampered our ability to make progress kind of anywhere. And I guess I would just be curious about your thoughts at the intersection of kind of political polarization and questions of federal versus state versus local, you know, authority, is there a way in which, you know, that we’re thinking about thinking about, you know, this question of centralization, and decentralization or changes in how we, you know, have kind of turned that particular dial might, you know, might have implications for polarization or even some potential to depolarize what has become an extremely polarized set of issues? Yeah, I’ve been
Jonathan Adler 1:03:57
fine. I mean, I wish I knew how to how to facilitate depolarization. But I do tend to think that, that a principled federalism can help depolarize because it can lessen the stakes. You know, that other people are living under a set of rules that they like, but I don’t, is, right, there’s less at risk there than when I’m fighting with other people over the rules we all have to live under. And again, that doesn’t work for every issue. And we do have to worry about, you know, we do as a country have a baseline commitment to it to a certain degree of rights protection and human dignity that that is kind of off the table and non negotiable, but but, you know, with there is a broad space where I think we can we that decentralizing helps depolarize and conversely unnecessary centralization, Magnum magnifies polarization, but I don’t want to overstate the claim, right. I don’t want to say like, you know, if we got got this right, we’d solve our problems. It’s, it’s, you know, these are the effects that I think on the margin decisions to some decisions to centralize on the margin, I think are going to tend to increase polarization decisions to decentralize, to decentralize, are on the margin going to tend to turn the dial a little bit the other way. But, but I don’t want to suggest that, that the question about centralization is the most important variable or the most important factor, you know, I don’t even know how one would measure that claim, let alone defend it. But, um, but I think that that, I think that’s, that’s part of it. And I think that, that if, you know, we, if we could reorder, you know, the way we approach them on a policy so that the things that are centralized are the things where we can recognize we can’t address otherwise. That might help, because I do think that when you look at at jurisdictions that have very polarized positions on some environmental questions, do tend to be somewhat less polarized when it’s in their own backyard. Right. I mean, I gave the example earlier about, you know, Ohio being a fairly red state, a state that, you know, the same attorney general, in Ohio, that loves suing the federal government for over regulating, is also very happy to celebrate tangible on the ground environmental enforcement actions that are actually reducing pollution, and, and holding polluters accountable in the state. And I don’t think there’s a conflict there. Right, because and so I, you know, I do think that there are opportunities there. I’m not going to say that, that, you know, it’s the key to some great political victory or anything else, but But I do think there are opportunities there to, to take advantage of the fact that that when we are closer to the, the consequences, there’s less room for the ideological polarization and there has to be a greater focus, okay, what’s actually going to going to work. And for those environmental problems, where we are dealing with, you know, quality of life on the ground. You know, I think that, that has an effect when we’re talking about environmental issues that are kind of much more value driven. That’s harder, right? Because then we’re bringing all the the ideological and other normative stuff that that feeds into polarization and other contexts in ways that I, I wish I knew how to how to deal with better so that’s a kind of answer.
Michael Livermore 1:07:39
Yeah, no, I mean, with something as complicated and as multi-causal as political polarization. I think maybe making changes on the margin is actually a huge is a huge, huge opportunity. So yeah, so thanks so much, Jonathan for taking the time to chat with me. This was a was a really fun conversation.
Jonathan Adler 1:07:57
My pleasure. Happy to do it.
Free Range Podcast 