Michael Livermore 0:11
Welcome to the free range podcast. I’m your host, Mike Livermore. The episode today is sponsored by the program on law communities and the environment at the University of Virginia School of Law. With me today is Richard Lazarus, a professor at Harvard Law School and author of the book, The making of environmental law, which is recently out in its second edition. Hi, Richard, thanks for joining me today.
Richard Lazarus 0:32
Delighted to be here. Thanks for the invitation.
Michael Livermore 0:36
So one of the big takeaways that I’ve always gotten from the making of environmental law, both of the first and a second edition is your view, that kind of environmental law is hard. It’s a particularly hard area of of law and policy. Do you do you think first just get us started? Do you think that’s a fair reading? Is it accurate characterization of the view that that you have in the book?
Richard Lazarus 1:00
Yeah, I mean, absolutely. I mean, and I try to tease out the reasons why it’s something I thought a lot about when I started teaching, actually, now 40 years ago, and I thought, a lot of people just think it’s hard, because like, there are good guys and bad guys. And I think it’s much more complicated than that. And I think they’re just endemic reasons, structural reasons for why it’s hard a rooted in the nature of environmental science, environmental economics, and how they collide with our lawmaking systems.
Michael Livermore 1:30
So So, so you talk in the book about kind of the spatial dimensions and the temporal dimension, so So maybe we could just get on the table, what what some of the kind of particular complexities of of environmental of the, let’s say, of the environmental domain as a subject of, of law and policy?
Richard Lazarus 1:46
Yeah, I think that when it comes down to it, it’s sort of pretty simple. And that is that our ecosystem, by its nature, spreads out cause and effect over time and space. So what that means is, you have activities in one place at one time, that have consequences and another place and another time. And that can be fairly simple. Like you have a power plant, which is discharging pollutants into a waterway, which flows into other neighborhoods, it can be a power plant, or any kind of manufacturing facility, which puts emissions up into the air. And it has impacts in other places where the activity is located. It can be you know, picking up hazardous waste or solid waste and taking the truck from one place to another place. And if you look at sort of the history environmental, you often see that it’s not coincidence that a lot of activities happen at borders, a lot of polluting facilities are in one jurisdiction, and they cause pollution in another jurisdiction. And so there’s this temporal and spatial separation, which makes it hard to make law, because you’re actually you’re regulating some people at one place in time for the benefit of another group of people at another place in time. And that can be a few feet, it can be miles, it can be thousands of miles, it can be a few days, or it can be as we see, with climate change, it can be hundreds of years. And it’s hard for any lawmaking system to deal with that, because you’re basically opposing the cost of regulation on one group for the benefit of another group. And that means environmental laws inherently redistributional. And that’s hard. And when you add major separation retirement space, and that’s just what ecosystem requires, you can’t work your way around it. And that’s really hard. Because it’s also separated time and space means there’s a lot of scientific uncertainty in what’s going to happen over time and space, as well. And so you put those ingredients together, it makes it hard to pass the laws and hard to administer them over time.
Michael Livermore 3:57
Yeah, it’s really interesting, because, you know, um all of this is true. And, but, you know, for my own personal story, part of what attracted me to environmental law, the environmental domain, was at least my first impression that there was something actually easy about it, at least theoretically, that, you know, environmental laws, like super well justified, you know, there’s kind of classic externalities, you know, almost any moral theory is going to have a place for even extreme libertarians likely will have a place for at least some environmental law. You know, when I was first kind of engaged in environmental law and politics, I was attracted to the fact that there was at least some degree of seeming social consensus, that that we cared about the environment that we wanted to protect it. As I learned more, you know, it seemed that there were some clear tools that we could use that would be very effective. But of course, in reality, there’s there’s a lot of space. So all of that may be true that the There’s certain some things about environmental law that is easy. But of course, there’s a huge amount of space between, you know, the those theoretical points and and the practice of environmental law. And and do you see that as mostly a result of the distributional consequences of environmental policy that tends to have important distributional consequences?
Richard Lazarus 5:22
Yeah, I do. I mean, I think, I think for the first 20 years or so I tend to think more about sort of macro issues. And that is, what’s the right level of pollution, look at the costs, look at the benefits, and figure out what the right level should be. And then you had to deal with obvious problems of whether you have a common denominator to compare the costs and benefits. And where there were some uncertainties, which made it hard to measure the value. And then it was over time, I started focusing more on the redistributional side. And the fact is, Barbara law doesn’t just have to deal with the hard issue of how do you compare the costs and benefits and figure out the right level of pollution has to do with the more fundamental question of the costs go to some of the benefits go to others. And that’s really hard for any kind of lawmaking system to deal with. And then it turns out, it’s really hard for our lawmaking system to deal with it. There’s a fundamental sort of challenge to sort of democratic institutions to sort of small national government built into our Constitution, larger state, local governments to deal with these kinds of redistributions over time and space. And it’s something I began to focus on in the 90s a lot. When I thought more about environmental justice, and then climate change just blows the whole thing apart. It’s sort of the worst nightmare for environmental lawmaking.
Michael Livermore 6:44
Yeah, it’s all of the problems just amplified. Absolutely. So. So just, you know, it turns out, it’s an interesting personal history of kind of first thinking about the, as you said, the macro questions, or maybe the aggregate kind of questions, you know, what, what’s right from the perspective of society as a whole, and then, over time, kind of getting attracted to and recognizing the importance of distribution, distributional questions. So So would you say that you were kind of equally attracted to all of this or that, you know, you actually find the hardness of environmental law, you know, it might be frustrating sometimes, but intellectually interesting, or is it just look, you know, from your own motivation, to continue working in the field? And, you know, obviously, you’ve had a wonderful career over over many years. Do you find the difficulty motivating? Or is it just like, look, darn it, we need to fix these problems. And it might be hard, and but we have to plow through and, and the difficulties are just something we have to figure out how to manage as best we can.
Richard Lazarus 7:44
I find it really motivating, right? I’m an academic, I’m a scholar, I find it very motivating. And I think teaching about it. So people are more sophisticated in thinking about what makes it hard, makes them better environmental lawyers, as well, and better policymakers. It is certainly part of what I find fascinating. And it explains things to me. And I think it makes me a better teacher. I hope and because it’s you know, if you look at the statutes, and the regulations, it’s just a mess, right? It’s incredibly complicated, very dense, very technical. And if you provide the students and lawyers with some framework for understanding why it’s such a riddle, why there’s so many anomalies to it. I think a lot of it has to do with the challenge of environmental lawmaking itself, which make more sense of the Clean Air Act, make more sense of the clean water, make more sensitive laws, like super foot laws. I think if people understand why it’s hard, then it’s easy to understand why it looks the way it does, and makes it easier than the fear. Well, what do we need to do to try to change it over time? But for me, as an academic, I find it incredibly intellectually interesting. And I focus a lot as a result on sort of fairness issues. I mean, I think what a lot of environmentalists don’t do is grapple with the fact that there is some fairness issues here, and you need to address them and not ignore them. Because you don’t, we’re not gonna get the progress we need if we ignore the fact that these distributional consequences do mean that while society as a whole may be much better off to people who are hit by the failure to address these issues, and people are hit when we address them. And if you don’t take those fairness, distributional issues to account, environmental law is not going to make the progress it needs to make.
Michael Livermore 9:37
Yeah. And, you know, just reflecting on what kind of a point you made earlier, is that the the kind of mismatch between our democratic institutions maybe especially that we have in the US, but but generally political institutions broadly. You know, the kind of the spatial dimensions the temporal dimensions, you know, our particular system of federalism of kind of very difficult lawmaking checks and balances, judicial oversight of the administrative state and so on. That these are these are very tricky. Kind of institutional, it’s a tricky institutional environment, to construct environmental law in particular. Now, you know, after, you know, you’ve, you’ve been at it for a while and just completed this, the second edition of this, you know, kind of broad overview of environmental on the states is your sense, optimistic that, you know, as you know, we’ve we’ve managed, we, you know, it’s not perfect, but we’ve done reasonably well at addressing many different environmental problems, obviously, progress to be made, except for, you know, climate change, and which is the biggest environmental threat of our time. And then other, obviously, other global threats. Nonpoint source pollution for water has been, you know, a huge challenge that we haven’t made a ton of progress on. So so do you, are you optimistic that we can still kind of work within the existing apparatus of of institutions that we have in the US and continue to make progress? Or do you think at some level that we’ve reached, you know, we’ve kind of gotten as far as we can with the institutions that we have. And that deeper environmental change is going to is going to require some structural change in our system of government, which isn’t good news, because that’s hard, you know, that would be hard to…
Richard Lazarus 11:31
That would be pretty hard to pull off. Let me put it this way, I tend to be optimistic and hopeful by nature. Some people may think, sort of naively, so. But I do. I can’t say I’m as optimistic now, as I was when I published the first edition. We came out in 2004 but it really completed right about 2000, or 2001. And that’s partly why I wrote the second edition, I had no plans to write a second edition. And then things happened after the second edition after 2000, which surprised me. And it made me want to rethink things. If you went back to the first edition, I really thought that as we entered the new millennium, and 2000, I thought that things were settling in a very positive way that you actually had the environmental laws and protection laws of the of the first three decades 70s 80s and 90s, which were very disruptive, right, of economic interest, investment, backtick mutation and property rights. I thought by the time we hit 2000 things, it’s settled in the legal landscape, and actually efforts to take those laws out, are more disruptive than efforts to keep the ban and the laws were had been enormously successful. So I thought things were sort of settling in a positive direction, even the climate issue, it struck me there was enormous potential for coherence and harmony. You had, you know, you had the Bush administration, which comes in just when I’m publishing this book, when George Bush ran in 2000, saying he would regulate greenhouse gases, even John McCain, holding the first rule of Senate hearings on climate change, a major climate hawk. You had people joined the Bush administration who believed strongly in the climate issue issue, Christine Todd Whitman, former governor of New Jersey, took the job at EPA, because she believed in it. You had Paul O’Neill, Secretary of Treasury, who was a climate hawk. So was Secretary of State, Colin Powell and secretary, sorry, the National Security Advisor, right, there was a real movement. And I thought it was pretty confident that we were going to have Republican Democrats come together. Not long after that, Newt Gingrich and Nancy Pelosi did a joint ad on television, they disagree about many things, but they agreed about the importance of addressing climate change. So I really saw in the early 2000s a settling of the issue. And that blew apart, blew apart quickly. First, during the first few years of the Obama administration, when they tried to really push the issue in Congress, and the Tea Party explosion response, which was focused on climate issues, among others, you know, blew apart that coalition made impossible any kind of national legislation, we all thought it was going to happen. And then election of Trump, who campaigned on climate change, he campaigned on more environmental issues than any president ever have before. He campaigned on it and won, in part, because of it. And so that made me think, Alright, I need to rethink this. So it was in 2016, that I decided that I needed to think about doing a new additional book because a lot of my thinking turned out to be you know, too naive about where our country was where consensus was. So I can’t say it was optimistic now as it was then. I tend to by nature to be pretty optimistic. But certainly the climate issue has been a major wake up call, in terms of how hard these issues are to address politically in our in our country, and I think they often have to be addressed politically, I don’t think we can assume the courts are gonna save us, as many people think they can. I don’t think they will. We have to do it politically.
Michael Livermore 15:29
Yeah, I think folks who thinks that courts are going to save us probably not paying very close attention to the courts that we actually have
Richard Lazarus 15:34
Exactly there there back in the 1960s. They’re back to the Warren Court. They’re back to Thurgood Marshall. They all think they’re going to be Thurgood Marshall. And there’s going to be some extraordinary ruling, which is going to write us, and the courts aren’t even remotely there. Right now. Certainly the US Supreme Court even then, right, it was good catalyst Brown v Board of Education. But it’s not like we got rid of racial discrimination through one judicial decision either it’s taken a lot of legislation over time.
Michael Livermore 16:03
Yeah, absolutely. So. So yeah, thinking about the that change, right, to casting our minds back to 2000. Or, you know, to even 2008 2008 election, right, you had you know, both candidates, both major party candidates were serious about climate change. I sometimes think about what would have happened if John McCain had been President. And it’s just an interesting thing to consider. You have a Republican president who was a climate hawk, the Democratic Congress, maybe it’s not worth thinking too hard about that. But but it’s but it is interesting to back then you had what seemed to be much more at least elite consensus. Now, obviously, we’ve seen this, the polarization that we have now is part of a process. I don’t know if it’s the end of a process, but it is the process goes back some time. And so what what do you so you know, this, we know, the story broadly, is there was more, you know, there was a great deal of bipartisan agreement about environmental issues, as you know, in the book, you know, that can be overstated. It’s especially Nixon’s commitment to environmental issues. But there was, I mean, within the Republican Party, the party, there was at that time, and for years afterwards, there were many folks who are strongly committed to environmental issues, both elites and within the base. And that’s really changed. So what do you think of are the main drivers if we think of polarization on environmental issues is one of the defining factors features of this issue these days? What, how did that come about? Like what are the factors that you see as as driving that kind of almost hydraulic increase in polarization over time?
Richard Lazarus 17:50
Yeah, it’s very frustrating. But I think one of the drivers are really distributional issues. And the fact that some very powerful economic forces, the mining industry, and sometimes in the fossil fuel industry writ large, they took advantage of quite effectively others distributional differences, to focus on on people in communities across the country to convince them this was a major problem. Certainly, if you look at the 2000 election itself, people always say Florida made the difference. I always say West Virginia made a difference. West Virginia, went Republican for the first time in decades, in 2000. And the coal industry is why they did. They viewed Al Gore as a threat. The day after the house finally passed climate legislation in June 2009. I have been traveling back in my home area of Central Illinois and Central Indiana. And that next day, I heard all these commentaries on the local radios as I drove about how that was gonna increase people’s utility, electric electric rates and what we’re gonna do to farming communities and rural communities across the country and employment. I think that worked. I think it worked effectively. And it really helped create this notion that environmental laws and climate in particular were hurting individuals. I think there was a lot of powerful short term economic interests, which fueled that. I think there is a lot of acceptance of it by government, sorry not by government, by local people, local communities and acting in good faith. I mean, they believe it, they worry about it, and I fault the Democrats in part for how they tried to sell, sell the climate issue about sort of smart versus dumb. Good versus bad. And not taking into account the fact that there really are serious distributional consequences. And you do need, when you try to do something that is significantly disruptive for people in their lives and their jobs you need to make that part of the package, and the first sentence. The classic example, I always give of just a complete misstep, was Inconvenient Truth. That documentary came out. I walked out furious, and everyone else was like cheering. I hated that documentary. It began with showing the Florida election dispute. It showed county votes in Florida. So they immediately equated climate change without Gore, and politics. And then the next scene is Al Gore standing on stage. And what’s he doing? He standing on the stage, lecturing the American people about the truth. And he’s telling them about what he first learned about this where at Harvard University, Harvard College, it’s like a disaster, right? It’s complete disaster. It’s all making it about Al Gore. It’s making it about what he learned at Harvard, and how he’s going to tell the American people the truth. That is not how you sell something, make it about opportunity, make it about dealing with people in their lives in local communities across the country, the distributional consequences, they’re gonna feel because of climate change, and make it about things that will be done to address their needs as you transition out of such a carbon intensive economy. And environmentalists stumbled on that, the same way they stumbled on environmental justice for a long time, they settled on the real fairness issues, that good environmental protection laws implicate. And climate change, I think we fail on that we let it be captured by the Tea Party folks funded by just short term economic interest in the fossil fuel industry, who just saw a political opportunity, and they very effectively exploited it to the detriment so they they’ve made environmental law, they’ve helped make it a very, very polarized issue that existed before right, existed 1990s When the polarization happened, but it’s gone. A very viral way, and malignant ever since.
Michael Livermore 22:36
Yeah, that’s really gone through the roof. And one of the it’s it’s very interesting perspective on Inconvenient Truth. I mean, it is very, in retrospect, almost obvious that, you know, let’s just say a non ideal messenger for the cause of building social consensus on any issue is a failed presidential candidate. Right? It’s just, it’s just not because that person is associated with one particular political party, and everything is just going to read as part of a campaign after that. So. So that’s particularly tricky. One of the one of the when we talk about polarization, right, what we’re kind of speaking about specifically, is the differences between the parties inter-party difference on environmental issues, there was, oh, there’s always been disagreement, right? I think some people can be confused about, you know, the difference between those things, you know, we don’t agree on lots of things. But then certain particular issues become very polarized, which is to say, they line up with partisan affiliation. So, you know, we might say like, it’s just something interesting about the story, because within the Democratic Party, there was, if we kind of rewind a little bit, there was a lot of contestation about environmental issues. And within the Republican Party, there was contestation. So what we had was kind of intra party disagreement. So in the Democratic Party, you had, you know, you, you spoke about West Virginia, the coal miners unions, they were never going to be huge fans of stringent environmental controls. Automobile workers and unions have been, you know, serious, as have lined up in a serious way against environmental organizations in the past, generally, you know, you know, working class voters, you know, who care about pocketbook issues, and when you talk about electricity prices, it’s going to resonate with them. And, you know, the traditionally these were, were constituencies of the, of the Democratic Party. And on the Republican side, you had the kind of patrician, you know, folks who care internationalists kind of globally oriented folks, folks who cared about, you know, they had big summer homes up and up in the Adirondacks or whatever, you know, that’s up but also people that live in rural areas, and then you had the industrialists and folks who, you know, were worried about regulatory costs, and over time, that different kind of, you know, within the parties really translated into differences between the parties. And you mentioned a couple of actors out there, right. There’s kind of fossil fuel interests. There’s the environmental groups, and you mentioned them stumbling. I mean, I wonder, one. I’m curious about what you think about, about one theory that I’ve heard about polarization, which is that there were the Republican leaders of the Republican Party eventually decided that they were never going to get the environmental vote. That, you know, after, say, George HW Bush, who had done, you know, a fair amount on environmental issues was very good for a Republican, let’s just say that. And then the environmental community basically endorsed and went strong behind Bill Clinton, who was really not well known, and then of course, out as an environmental disaster. Right. Exactly, exactly. And, of course, Al Gore was on the ticket, but he was the vice president. And you know, nobody really focuses on the vice president. So. So yeah, I’m curious if you think there were strategic missteps, or is this is again, just part and parcel of broader social processes that that no one really could have done anything differently about?
Richard Lazarus 26:08
Yeah, I think it’s a little both. And part of it is, you know, we did lose, generally Southern Democrats and northeast Republicans. And that wasn’t just environmental. We used to have, you know, conservative, more conservative Democratic senators from the south. We had more liberal Republican senators from the northeast, right. And both of those have become sort of endangered, if not almost extinct species. So you would see in the in the 1970s, these Republicans playing huge roles in maintaining and passing the environmental laws of those times. You had Stafford, you had Chafee from New Hampshire, and Vermont, from Rhode Island, you had Howard Baker, right, from Tennessee, Republican being a champion of a lot of these issues, you had, you know, conservative Democratic members of the House and the Senate. You know, Jamie Whedon, I think he’s from Alabama, and the South, who were fairly skeptical of the of these laws. So you had much more sort of give and take and debate within within the parties. And then because of civil rights of the rest, that LBJ sort of separately signed the civil rights act of 1964, families said there goes the democratic South forever, as a result. So you did have these, I think more general trends beyond that, beyond environmental law, which happened in this country, but I do think the unwillingness environmentalist, their sort of embrace of the Democrats and their embrace of all liberal issues sort of coming together, played a contributing role here. I mean, it’s why Richard Nixon, after 1970 basically says that, you know, that’s it didn’t work, right. It’s just not a good political issue. I’m getting nothing. I get nothing for it. I did NEPA, I did the Clean Air Act of 1970. I gave this incredible environmental message in February of 1970 I got nothing for this issue, right? That’s what the Nixon papers show him saying is Chief of Staff and advisor. Ehrlichman at home and he says get nothing for this. We need to get off of this issue. It’s not a good issue. It’s not a it’s not a good political issue. People don’t run on sort of, people can’t win by convincing American people to do less. They were on freedom from government. And then Bush, who I think was an honest environmental President, again, northeast, Republican from Texas, but he grew up with northeast Republican he vacationed in Maine, this is in George HW Bush. He runs to be the environmental president. He’s the first one who does. He campaigns against Michael Dukakis with ads showing how dirty Boston Harbor was. He appointed his secretary, sorry his head of EPA, Bill Reilly, a complete northeast Republican, environmentalists who the president of the conservation Foundation and the sea art environmentalists and a champion. The Clean Air Act of 1990 is amazing law. And they push hard they work together with EDF to get that law passed. It’s a fabulous law, about three hundred pages long compared to the clean air act of 1970, which is about 30 pages long, and what is pushed get for it nothing. He gets no political payback for it from liberals and from environmentalists, so he pivots and he pivots away from it a pivots back to the industry base when the Democrats nominate Bill Clinton, the press the United States, the Sierra Club chapter in Arkansas resigned to the national Sierra Club in protest this very club and was Bill Clinton, because he didn’t have an environmental bone in his body when he was governor of Arkansas, that’s what recently picked out Gore to sort of give himself a little bit of credibility on environmental issues. But in the early 90s, both Democrats, Republicans sort of went to their opposite sides. And they’ve been there. You know, ever, ever since. And it’s a disaster, it’s really been a disaster for the country. Because these issues as you know, and I know, they shouldn’t be red and blue. Sometimes it should be downstream, and upstream or downstream that wind up with as the wind blows, and the water flows with distributional concerns. They’ve all become political ever since. And they undermined, you know, honest discourse. And even we thought we’d have it in 2008 2009. With climate, it ultimately couldn’t survive and helped elect right, one of the most incompetent and threatening presidents in the United States, Donald Trump in 2016, environmental law played a role in that.
Michael Livermore 31:05
Yeah. Yeah. No, it’s, it is it is dispiriting. And but it is also, it’s interesting to reflect on, you know, both, as you kind of noted, the, just the big structural changes in American politics over this period of time, and, and also some of the Yeah, also some of the strategic decisions. So at the same kind of the timeline that we’ve been talking about, you know, you know, 70s 80s 90s, that, at least set the seeds for the current current dynamic that we’ve seen in the, in the subsequent and over in the past 20 years. You mentioned it mentioned a couple of times, so want to dig into it is the is the role of environmental justice. Right. So that’s changed a lot. So, so going back to the early days of the environmental movement, as you note in the book, and I think is always a fascinating thing to bring up in classes, there was actually, it wasn’t obvious that the civil rights movement and the environment and the environmental movement, were, you know, heading for friendship, let’s just say there was real tension there was there was concern that environmental advocacy, advocacy, concern over environmental issues was drawing attention away from concerns of black people, concerns about social justice concerns about poverty and cities. You know, there’s something, you know, maybe troubling about certain elements of, of the environmental movement, how they frame issues of clean versus not clean the kinds of issues that were focused on the emphasis on kind of the suburbs, and, you know, that kind of pristine environment. That was there’s a lot of weird discourse around Native Americans and early, you know, this period of time. So, so yeah, so it was, you know, there was from the very beginning kind of tensions. And again, this is kind of within the reformulated if we think of the Democratic Party as the party of civil rights. So that’s obviously post LBJ. Kind of version of the Democratic Party. So there was there was a great deal of tension there. I mean, how do you thumbnail that story of how we get from there, through the, you know, through a long period of, of back and forth to kind of the what we I think it’s fair to say, of, as really a rise in, in the prominence environmental justice, the working pretty, pretty closely together of the of the big greens, that Biden administration has really placed environmental justice at the center of its environmental approach.
Richard Lazarus 33:30
Yeah, so it’s interesting, and it’s not something discussed as much detail in my book as I wish because it’s autobiography. But for me, sort of, I think it was fall of 89, spring of 1990. I was in the law school faculty at WashU. And I had a complete wake up call, complete, wake up call on these issues of environmental justice. I mean, I was sort of like, your classic person, young environmentalist. I went to undergrad University of Illinois, I decided I wanted to be an environmental lawyer. So I actually got a Bachelors of Science degree in chemistry, a Bachelors of Arts, again, economics, two different degrees all to do it. All I did was environmental law in college. What I did at law school at Harvard was environmental law, and then I was an academic, I did environmental, I knew everything about environmental law, everything about it, I was completely immersed in it as a practitioner, and as a scholar and teacher. And then a guy named Kevin Brown, walked into my hazardous waste class. In 1989, at WashU, African American from Northwestern University undergrad, Kevin walked my office, it was a seminar I was teaching on hazardous waste law. At the end of class, he walked up to me and wanted to talk about what paper was thinking of writing for the seminar and I said, What do you think about Kevin? He said, Well, I’m really interested in the idea that maybe hazardous waste sites and toxic issues are more in black neighborhoods than white neighborhoods. And I looked at him, and I thought to myself, Hmm, I’ve never thought about that. I’ve never thought about it. And I did it in the first super fund, joint several liability case at DOJ, the Chem dot case, I was immersed in those issues. And I thought, I’ve never thought about that. Kevin, why don’t you go see what you can find. I ran to Kevin, a week later, during the weekend at the library, which is where our offices were. And I said, What do you find? He said, I couldn’t find anything at all. I said, Kevin, where are you, where are you where you’re looking? He said here, the Law Library. He said, Kevin, if it’s in a law library, I’d know about it. Go to the main library. Go to hold the main library at WashU. I ran to him a few days later with a pile of books. Right. It was Bob Woodward’s book, it just came out. It was Charles Lee’s toxic waste race. The sociologist had just been publishing on it. It was so fascinating to me, and I wrote an article on environmental justice. He was the first law professor to write an article on the distributional side of environmental law, promoting environmental justice at Northwestern Law Review, is it I always hear classic sort of white male liberal, right? interested in these issues, and I had never thought about it. And I knew my cut my peers had thought as well. So maybe dive into it for the first time and made me rethink how I thought about environmental law, generally, about distributional issues and maybe discover what you were just talking about. That in the early 1970s, late 60s, the civil rights leaders, Gary Hatcher, Mayor of Gary, Indiana, Mayor Hatcher everybody’s first name offhand. Mayor of Gary Indiana said environmental visit his dad with George Wallace, the segregationist was never able to do distract the American people from the needs of the black communities across this country. And so at the same time, that the a lot of black civil rights leaders were seeing this as a distraction. And it’s nothing taken away from their, their, their needs. They’re compelling. The environmentalists were adopting like this rights movement tactics. A lot of the early environmentalists had marched in civil rights marches in the 60s. Then they went to law school, and what did they create the Natural Resource Defense Council, their own defense fund, then this haircut Legal Defense Fund. That was no happenstance. Right. It was an NAACP Legal Defense Fund. They were adopting the rhetoric, the language, the tactics of Thurgood Marshall using courts. And it never occurred to them, or to me that there was something they were doing, which actually was not just ignoring the environmental issues, the human health, public health issues of black communities, but actually making things worse for them by not addressing their needs by not focusing on their concern by not having citizens who’s brought to address the environmental issues of those neighborhoods. So it’s a huge wake up call to me, when Kevin O’Brien walked in, he was in my seminar and night at night, and it’s made me rethink ever since, not just environmental justice issues, but fairness issues, and environmental law. Like the fairness issues, not to say EJ Q news will take care tremendously about but also about communities, which are sometimes adversely affected, because environmental restrictions by the loss of their jobs, and their economies, and environmental needs to take those things into account. If we don’t, then we do it at our peril. And that’s what’s happened. Both on the right, and on the left.
Michael Livermore 39:02
Yeah, you know, it’s interesting, as we’re kind of talking this through, it says, you know, it’s really interesting story, that kind of personal history there. And well, actually, I have a, I have a, maybe a quick question. And I wanted to integrate this a little bit with some of the other issues that we were talking about. So at that time, when you were kind of first kind of, you know, they had this experience of, of really thinking through the the kind of racialized dimensions of environmental harm and environmental policy. Were was class something that would have already been on your mind and it was the it was the it was the kind of the racial dimensions that that was kind of just coming up now just with you, but within the whole field, obviously. Was Was class and it was already on people’s mind or was it really, folks just weren’t thinking about this from a distributional kind of group level race class, maybe gender is in there too kind of perspective?
Richard Lazarus 39:59
I’d like to Yeah, I don’t think they were thinking of it. And actually, this is what happened early on environmental justice. And that is when you start writing it and thinking about it, there was a huge effort to say there’s no race here. This is just class. And so the debate became whether or not this was just another class based issue, or whether it’s a racial issue too. And so the class dimension of it, which obviously does exist, because it’s both, that became the response of people to say, No, you’re wrong. There’s no racial dimension to it. It’s just a class based, it’s just based issue. And that was that really angered the American justice movement to say there was no race associated with it. I pretty quickly took the side there was a racial dimension to it, as well. And I think a lot of statistical analysis since then have shown that obviously, the class based issue, but there’s a racial civil rights dimension to it, as well, which can’t be ignored. But interestingly, that became the sort of the way to diminish the movement early on and say, Well, of course there is. That’s just, that’s just an econ class based issue. I think it was really important to establish that it was that it was both, but it did make me think about the issue from both racial and also a class based issue. I wrote an article fairly early on after that called fairness and environmental law, which is about distribution writ large is about each race. But it was also about the takings issue. That’s my one area of litigation. I’ve I’ve read, I’ve litigated a lot of takings issues in the Supreme Court. I always take the side of government, that something’s not a regulatory takings. The very first brief I wrote was irregular takings case. A good VCT Tiburon that a lot of Supreme Court briefs and arguments that last case I argued a few years ago was Murphy, Wisconsin, again, on behalf of government happy to say we won that case, which gets harder to do these days. But But I wrote separately about the fact the fact that I don’t think something is taking as a matter of law, doesn’t mean I think there’s no fairness issues there. And that legislators, as matter of legislative grace, should find ways to compensate people for these disruptive measures, which we now need. It’s one thing to say it’s not constitutionally compelled, it’s another thing to say that it’s not as a matter of legislative grace, how you should treat people, I should think about these transition issues. And one of the issues I wrote about back then and that issue, and that article of fairness, has come home to roost, and a really unpleasant way, because I also wrote about criminal law. And I wrote about my worry, that the failure to take account of the fact that the mens rea issues for some of the environmental statutes, and related wrote an article about this, how there was the potential unfairness, and applying in a very sort of undisciplined way, all environmental statutes, to make them felonies, without a mens rea which required that level of criminal culpability associated with it, put those statutes at risk for being applied in an unfair way. And I wrote about it than that I wrote a big article about my worry, not that the law shouldn’t have criminal dimension, they should, but you need to make sure that person was convicted of it had a criminal culpability associated which warranted a felony conviction. And something about the nature of environmental law made that hard to do. And we’ve seen that come back to hurt us just right a couple of weeks ago, and the Sackett case, where the court uses the criminal dimension of the Clean Water Act, which is a good thing. But they use that as an excuse to cut back on the scope of the statute dramatically throughout. So I think these fairness issues that again, if you don’t pay attention to them, you let them go by they come back to hurt you. They come back to hurt us politically. And now with a Supreme Court decision, which has devastated the clean water, they come back to hurt us environmentally as well. Yeah.
Michael Livermore 44:21
Yeah. It’s, it’s, it’s really, it’s really interesting. And as you note, the that just kind of just get back to something we were saying a little bit earlier, the the response of many in the environmental community was to kind of substitute or to argue that it was all about class and it was about race and folks who just some folks anyway, are more comfortable, I think talking about class than than race. And but I think the conversation has come a long way since then. You know, one of the, as we’re talking through this, one of the dynamics that you know, maybe I’d be curious to your thoughts on is in our political system, You know, in a way, where we are right now is much more focused on the distributional consequences of environmental policy than than it had been in the past. And what one way of articulating that or one way of kind of interpreting our current moment is, the parties have just kind of adopted, you know, different constituencies that are differentially impacted by environmental policies. And so the Democratic Party has become much more oriented in the in the environmental movement within the which really, frankly, these days is mostly within the Democratic Party, much more oriented around justice issues, and environmental justice. And, you know, and is also trying, in some sense, I think, to, you know, do things like build community with like unions and other traditional constituencies within the Democratic Party that they had been somewhat oppositional to in the past, and then the Republican Party is really focused on the distributional consequences on the other side of the distribution of the cost of environmental protection. And so, you know, Trump making a big deal about coal, you know, the, the so called war on coal, you know, fundraising, a bunch of fossil fuel companies emphasizing electricity, electricity prices, and the like. So, so I’m curious what you think of that, that read of the situation? I mean, is there a sense of this, it’d be very optimistic. That, you know, actually, this is just the natural way that our system deals with when it’s focusing on distribution, which is, is a key thing, in environmental policy is that parties are going to pick different actors out there, and they’re going to kind of advocate for their interests. So the Republican Party is advocating for the interests of the of the payers of the costs, and the Democratic Party is advocating for the interests of the folks who bear undue environmental burdens. And that’s just like our system right now. And maybe that’s a I mean, so I’m curious if we’re gonna maybe the question is to try to articulate this as if we’re kind of in a mode of recognizing and focusing on the reality that environmental policy and law has very substantial distributional element, both on the on the harm of environmental pollution side, and on the cost side. Can we anticipate anything other than just straight polarization over that, I guess, where the parties are kind of picking people like how do we do both things? I guess, is the question. Focus on distribution and not be overly polarized.
Richard Lazarus 47:28
Yeah, no, I think there is a pathway out of this, whether we can reach it in all the sort of noise that everyone makes. The pathway, I think is twofold with the distribution. At one is that those, the costs of pollution and climate change, aren’t just on sudden communities, they’re also on a lot of red communities, there are a lot of local towns around the place who’ll be drinking water and the rest all of them are going to suffer from climate change. That’s as long term in the near term. So I think it’s making those goodies realize that the consequences aren’t just on other people. They are actually on their own rural communities. And we have a big rural urban divide in the United States. There’s a need they have for clean air, there’s a need they have for clean water, there are real consequences to them in their lives. If they’re in the fishing industry, if they’re in the tourism industry, or the recreational industry, there’s real value to them. To having climate change addressed, water pollution addressed, nonpoint source pollution, you alluded to earlier dress, and that they feel near term, it’s got to be that people don’t pay attention to long term, and they never will, right. It’s not built in their cognitive behavior, that there really is a near term cost to them, and benefit to them of these laws. And we just have to do a better job of selling. That’s one side of the equation. The other side of the equation, which is just ripe for the picking, is that if you have this kind of shift in the economy necessary to address these issues, there are enormous economic opportunities that, you know, if we’re going to establish sort of things other than dependence on fossil fuel and coal, the number of business opportunities out there. There’s private sectors. Our colleagues, you know, very well, Michael Vanderburgh at Vanderbilt has written a lot about this very effectively. There are there are huge business opportunities to address these issues. The businesses and services that can produce electricity, energy source with less carbon, they’re gonna make a gazillion dollars. The ones who can do solar and wind and hydrogen fuel there are enormous economic opportunities out there. And those will if those if you spread out those economic opportunities. And with those climate disruptors as opposed to the fossil fuel incumbents, there is a way here to have our cake and eat it too. We just have to make sure we can distribute the benefits of that as as broadly as possible and make those goonies aware of those benefits. There are a lot of national law firms now, we still represent the fossil fuel industry. They represent the disruptors. It’s why you saw right the power industry violence in support of the Clean Power Plan in the West Virginia case. It’s why when you turn on your Superbowl ads, right, what do you see, ad after ad after ad about electric cars, because the auto manufacturer realize we can make money. With this, we can do this. And this is where the future is. It’s why the lighting industry isn’t going to ignore climate change, when they’re sitting. Doing investments while the insurance industry isn’t going to ignore climate risks. If we could have the marketplace, be let loose and set the right signals and signals both in terms of disincentives, and incentives, positive sentence, there is a way out of this, if we can sort of avoid some of the noise of the politicians on either side, who keep wanting to pitch this as good versus evil, as opposed to, you know, a pathway to the future. So it’s going to it’s going to be hard to accept that. People tend to see this as like, these are good people, these are bad people. But I’m I tend to be hopeful. With that said, Michael, if you came to my office and looked at the wall next to my desk, you would see what I think you see on the on the wall next to the desk of every environmental law professor in the country. And that is there’s kind of a dent in our walls. Because we feel like we’re banging our head against that wall for about 30 years, trying to get this message across. I hope it’s finally getting across, I hope we see change. We’ll see if Donald Trump wins re-election, that could be a disaster. And people need to do better about electing people who are less partisan on that. It’s hard with our political system with gerrymandering. But I think that’s the only the only way out of this is real elections and not through the courts.
Michael Livermore 52:30
Well, that that I that I certainly certainly agree about I can’t imagine any situation. And maybe we could just spend a few minutes talking about the courts. For just to clarify exactly the degree to which that that’s going to be the case. So So you mentioned the second decision. And you know, there’s an interesting arc of the courts that you’re describing. In the making of environmental law. Obviously, in the early days of US Environmental Law, you had judicial champions of environmental protection really saw the role of courts in this, you know, transform, not exactly transformative in the sense of you’re we’re going to use the Constitution and courts to transform society, but at least playing a productive Pro Environmental role ensuring that administrative agencies are, you know, advancing the goals that were adopted in the major environmental statutes and so on. And in any case, that’s that’s changed over time, especially at the Supreme Court. And we’ve, we’ve had a couple of really huge decisions in the last couple of years on the Clean Water Act and the Clean Air Act that that are going to reverberate for some time. So you’ve you’ve litigated before the Supreme Court, you’ve been a Supreme Court watcher for for many years. One question I had was a bit of a, you know, kind of comes out of the arguments in the book is I’m curious about your views about the court these days. And basically, like, I think you have a sense. And there’s a sense in which, you know, like, for example, you talk about, I think, massive mess, sorry, West Virginia V EPA. And, you know, maybe there’s two ways of reading that. So one way of reading that is it’s kind of cynical, it is just anti environmental, or anti EPA or anti administrative state, it’s pro fossil fuel, and, you know, ends oriented way of stripping away the ability of government basically, to address climate change. That’d be one reading. Another reading would be that it’s a legitimate expression of concern about separation of powers. You know, democratic legitimacy of agency decision making and the like, right, those would be two different readings. The second decision could be read similarly, it’s kind of a cynical way of undermining the Clean Water Act and reducing just you know, just generally kind of doing favors for rural communities who are interested in getting easier access, you know, getting out of a particular kind of regime of Environmental Quality having to do with wetlands management, or you can read it, as you know, as you were mentioning even a little earlier as addressing genuine fairness concerns with respect to the application of the criminal law. So So I’m curious about your general read of of the court these days. Are you are you more, are you, yeah, just what is your general reading of the court these days? What can we expect? And what do you think of the courts motivations? Are you as cynical as the cynics might be? Or do you still see principled decision making there?
Richard Lazarus 55:32
Yeah, I tend to get maybe where I’m naive, I tend to be a fan of the court. They’re making that hard to be. Here’s what I would say. And I view the West Virginia V EPA case and the Sackett case differently. I’m not a fan of either one. I think I think both of them are decisions where the court should have gone the other way. I view the West Virginia V EPA case where the Court upheld the Trump administration’s repeal the Clean Power Plan as irresponsible. I can’t say that it’s like out of bounds in terms of legal reasoning. But I think it’s irresponsible. And I’ll tell you why. The second case, I think, is far worse than the Clean Power Plan case. So in the Clean Power Plan case, the West Virginia case, the court agreed that EPA had no authority to issue the Clean Power Plan and the first instance, and I wish they hadn’t, but that ruling by itself I can’t say is crazy, right? I mean, I defended the Clean Power Plan, I filed a brief in the DC Circuit. But I never thought the legal issues have slammed up. I always thought it was hard. And I thought was legitimately a hard question whether you could take the word system that Congress passed in 1970, and allow EPA to do a fabulous thing, the Clean Power Plan, fabulous, right? A wonderfully add from eco preset environment, perceptive, political, receptive, wonderful way to try to jumpstart us and get us to reduce greenhouse gas emissions from our largest sources existing coal fired power plants. But whether or not it actually fits the statute, and that was the harder, harder issue. Whether you think I thought the court should have and could have very responsibly upheld, but I couldn’t say it was compelled to do so. So the fact they ruled against the Clean Power Plan that case upholding the repeal, I think that ruling by itself, as disappointed as I was, I thought it was defensible from an intellectual perspective. I thought, however, that it was irresponsible, because it failed to take account of political realities of where we are. And that is to require Congress to have actually with a court requires clear congressional authorization, I thought its test was too demanding, and especially too demanding in light of reality of where we are. And that is if Congress doesn’t pass anything. And I thought it was close enough, that court should have held upheld the Clean Power Plan and change the default principle, make the other side have legislation to show that EPA doesn’t have this authority, rather than require congressional authorization in support of the clean power plan. So while I couldn’t say it was intellectually dishonest, I thought it was very important judging in terms of the role of the courts, and the standard they imposed under the major question doctrine, to require this clear congressional authorization. And we know we’re never going to get it. So I really criticized the decision. But I can understand as a matter of abstract principle, where those justices were coming from even if I thought they were misguided in their application to climate change. The Sackett case, though, the second is far different. And Sackett, the court has taken a pretty settled view of the Clean Water Act for five decades about how you have to go beyond traditional navigable waters, and go beyond this notion of a dictionary definition of waters to protect the waters the United States, as Congress dictated, to protect it, preserve the physical, chemical, biological integrity of the waters, to define navigable waters of the statute as waters, the United States loves history making clear why they did that. In this case, they took an existing very important program that’s persisted for decades. And they completely gutted it. Going back to dictionaries, a view which really doesn’t pay attention to the purpose of statute and the language of the statute and the legislative history of the statute. So I found that result very disturbing. If the court had done the narrow viewing in favor of the Sacketts, per se, that Brett Kavanaugh supported that Justice Sotomayor Jackson supported, that Justice Kagan support, that would have been a loss, which I would have not applauded. But I would have understood. But instead, the court basically completely up ended a law which is very successful. And it’s going to make it really hard to make the law successful. And that’s because, as the Court recognized unanimously, 1986, and Congress had water moves in hydrologic cycles, it moved from here to there over time and space. And you can’t even protect the waters that they say they care about. Unless you regulate discharges in the waters for which they have a significant hydrologic nexus two. So actually makes the law really hard to do with purposes, and there’s no awareness of it. And that’s just the majority. If you take a look at Clarence Thomas, and Gorsuch do Gorsuch two separate concurring opinion, it is, I would say with all generous chartered, I see intended, it is crazy. And it’s either incompetent lawyering or maybe dishonest lawyering. I don’t say that lightly. Because according to that separate currents, which no opinion takes issue with or addresses at all, that several currents provides that the Clean Water Act of 1972 basically does little more to the Rivers and Harbors act of 1899 97 and 92. It provides that it only applies just to have waters that are in fact navigable, and only regulates discharges to the extent they affect navigability. Not pollution and water quality, but navigability. That is insane. And they they come to that conclusion, based upon a rather Daniel ball, which is remarkably unpersuasive by saying the Supreme Court long ago said natural waters and water, the United States means the same thing. And that’s how you decide that’s all that Congress intended was no big change in the jurisdiction of scope. In 1972, when Congress made an absolute clear intention to change the jurisdictional scope. And the Supreme Court opinion opponents they were wrong for their say the two were used interchangeably. And they mean the same thing. If you look back the Daniel Ball case, how many times do you think they use the words waters in the United States and the Daniel Ball case, which is the mid 19th century case? Five, four, actually valid? The term waters of the United States does not appear once in the Daniel Ball case. What appears is the term navigable waters of the United States, well, that’s not the same thing. So you can say navigable waters been saying that that was United States, you can’t say navigable waters means the same thing as waters in the United States. What worries me is that majority doesn’t address that issue at all. And neither does Kavanaugh concurrence, which 3 other justices joined, or Kagan Sotomayor and Jackson separate records. So it’s just out there as an invitation, lower courts. So I think the second case is far more troubling, because it is threatens to destroy an existing very important fundamental program, rather than West Virginia, which prevented like a really ambitious, wonderful future move. And its reasoning, I think, is very persuasive.
Michael Livermore 1:03:49
Yeah. So maybe just looking and with a final question, which is, so given the state of the courts, in the reality that we’re likely to look at, you know, a court with a similar composition for for some time now, you know, possibly decades, you know, if we do build the political will necessary to pass, you know, substantial climate legislation. And obviously, there’s the inflation Reduction Act, but, you know, say even a regulatory approach. Do you think the courts will at least get out of the way? Or do you think that the courts are going to continue to be a you know, even even in the face of congressional action would be a substantial obstacle? They’re clearly going to be an obstacle to administrative action?
Richard Lazarus 1:04:34
Yeah, I think if the congressional action I think they won’t be. It’s why we need legislation. I don’t think they will. If we can get that language in the statute, then I think, as conservative as they are, for some of them, like Justice Alito, who votes basically, against whatever the environmental favorite result is in every single case. In the last 15 such cases, he’s voted the environmental side one time. That’s not true for anybody else. All right. But you looked at a case like, you know, the county of Maui versus Hawaii wildlife fun case recently, where the court ruled, but I think it was 7 to 2 in favor the environmentally preferred position. There is give there among the justices, if you can convince them the language and convince them of the result. And how and toward the other result is, so I haven’t given up at all with this court. But it’s made me realize they’re not going to do us any favors. We’re going to get that language from Congress or from states. I think on on state laws. There’s a chance because Justice Gorsuch has such a thing for states rights. And I think we’ll see some positive things, the National Pork Producers case, just Dormant Commerce Clause case, animal cruelty law, out of California, right, split the court all over the place. But they ultimately upheld the California law there. So I think there’s give there justice we can work with, I think we’ll need for federal law, better statutory language for states. I think, actually, the courts the visit of some of these issues, there are several opinions out there in different environmental cases where it’s state law, where we actually see the court reach a different result. And even the Clean Water Act, and the county of Maui case, we got a really favorable salt in that case, but we can’t assume they’re gonna do us a favor is we have to be smart in how we present records and litigation to try to get it done.
Michael Livermore 1:06:43
Great. All right. Well, well, thanks for the for the perspectives is, you know, it’s a wonderful book, you’ve obviously made huge contributions to the field over the years. So thanks. Thanks for that as well. And it’s been a super fascinating conversation. I appreciate you joining me.
Richard Lazarus 1:06:57
Yeah, it’s a real pleasure, Michael, I appreciate it a lot. I’ve read a lot of your, of your work, and I’m a big fan of it. And of course, we’re both a fan of Ricky Rivas, an OB that’s pretty exciting. It’s exciting. It’s exciting times for sure. Excited to see him there and, and to see his work coming out of there. He’s the perfect person the perfect place at the at the right time.
Michael Livermore 1:07:19
Yeah, I couldn’t agree more with that. So we’ll see. We’ll see how we’ll see how that all unfolds.
Richard Lazarus 1:07:23
All right, well, take care. Thanks very much.
Michael Livermore 1:07:26
And listeners if you enjoyed this episode, let us know. You can give us a like a rating subscribe to the podcast and follow us on social media. It’d be great to hear from you till next time.
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