Michael Livermore 0:11
Welcome to the free range podcast. I’m your host, Mike Livermore. Today we have a solo episode, which is going to close out the season two of the podcast and 2023, the year 2023. As a preliminary note, I wanted to make the announcement that free range has launched a Patreon page. So the podcast had some startup support from the program on law communities and the environment at UVA law. But right now, as going forward, we are on our own, it does cost something to run the podcast, actually, it’s not entirely free. Mostly, we need funds to pay for a sound engineer to kind of keep the quality at some reasonable level. So the goal of the Patreon page is to provide a way for listeners like you to support the podcast, the way this is going to work is that members will sign up to pay $2 per episode. Obviously, not a huge amount of money, but something with 100 members or so that will be enough to keep the podcast going. So if you’d like to become a member, you can go to patreon.com. And if you don’t have one already, you can sign up for an account. And then what you do from the account is there’s a little search bar where you search for what are called creators, and you can type in free range with Mike Livermore, and you should find the podcast and you can go ahead and sign up if you’d like. I’ve committed to offering a new season if we reach 100 members, that’s kind of the magic number. Now the idea is the podcast will still be available for everyone in the world who is interested for free on all the standard podcast channels. So what will be special for Patreon members as they will have the satisfaction of knowing that you if you are one are keeping the podcast going. And so you know that that you have that satisfaction that’d be that’d be your reward for for, for joining. And just you know, for my part, I have been having a great time doing the podcast for the last couple of years. It’s a great use of my time I interact with fantastic intelligent people who have lots of interesting things to say. So if there are enough folks who feel like they get enough value listening to the podcast to contribute a couple of dollars per episode, I would personally be thrilled to have the chance to stay at it. Today’s episode is in memory of Dick Stewart, who was a longtime law professor at NYU who died this past November. Dick was an extremely influential scholar. He worked in the areas of environmental law and administrative law primarily. And he really profoundly shaped both of those fields over the course of his long and illustrious career. He was also an important mentor to me, in particular during law school. During my one year my first year of law school, I spent the intercession break. The break between the first two semesters as his research assistant had been recommended to do that by another faculty member. And he put me on a project where I was helping to pull together a scholarship basically doing a literature review for a new field that he was in the process of defining, which he called Global administrative law, he worked with Benedict Kingsbury, another faculty member at NYU on a project on global administrative law for many years. So I did that project with Dick in December of 20, of 2003. And so, almost exactly 20 years ago, I really loved that first project, it was fascinating to explore how scholars were reckoning with the growing power of global institutions like the World Trade Organization, and to see dick and Benedict working together to synthesize these disparate voices into a coherent research program. It really sparked my interest in law scholarship. And it gave me some hope that this was something that I might actually be able to to do also supervised my first piece of legal scholarship or scholarship of any kind for that matter, which was in that global administrative law spirit. I did a paper on the an institution called the Codex Alimentarius, which, which is a great name and indicates the Codex is an international food safety body and I studied its deliberations and how to changes in the global trade system. And actually, the incorporation of the Codex Alimentarius into the global trade regime changed how deliberations worked in the institution. So it’s kind of about the politics of this institution and how the politics, external politics and internal politics interacted with each other over a kind of an important period of its history. Well, 20 years as a long time, and it is a long time. It’s not a long time, I guess. depends on your perspective, but it is a good marker. And a lot has changed since since I was a well, law student. And so in this podcast, I’m going to reflect a bit on that, kind of through the lens of Dick Stewart’s scholarship and his particular place within environmental and administrative law within those fields. So when I kind of think back to that 20 years ago, and I think, you know, again, about, about these two fields, and Dick Stewart, his work, I really know kind of two very substantial changes that have that are come changes in the world and fund really fundamentally changed the landscape on which environmental administrative law live. So the first big change is the breakdown of any workable bipartisan coalition on environmental issues in the United States. Although this is something that’s spreading around the world, we really saw it first in the US. But I think we’re we’re starting to see this in other jurisdictions as well. This is something that had been a long time coming. But it was probably during the Obama administration, that it really came to fruition. And we saw it kind of, I think, really operative with the death of major climate legislation on essentially a party line vote. And that was really the last time we contemplated anything, any kind of bipartisan climate action. And so this new environmental law regime, which we have now, which is illustrated by the inflation Reduction Act, and the Supreme Court’s West Virginia, the EPA decision, which we’ll talk about that a little bit in this podcast, I think that regime is really a direct consequence of this breakdown. And, you know, Dix Dix, Stewart embodied as well, as anybody did the prior consensus what existed kind of before this breakdown, he was a loyal Republican. In fact, he served an important role in the administration of George HW Bush, he was the Assistant Attorney General in the Department of Justice, in charge of what we call the environmental and Natural Resources Division. So the role of the Department of Justice that’s in charge of kind of prosecuting environmental crimes, and now in the like, he, in that role led the litigation team on the Exxon Valdez oil spill. So this was a huge environmental catastrophe that happened. And that was dominating kind of headlines at the time. And Dick helped, and really led the negotiation for what at the time was a huge settlement with the company of a billion dollars. And during his time with the Bush administration, Dick also worked with other figures in the administration on the last major piece of bipartisan environmental legislation, at least, arguably the last piece, which was the 1990, Clean Air Act amendments. And also at that time, and with Dick’s help the Bush administration was in the process of negotiating the 1982 Framework Convention on Climate Change is obviously a huge, important piece of international law that deals with with environmental issues. So that was a really different time, in the 1990s. And into the 2000s. Dick was not a rarity, as a kind of reasonable pro environment, Republican. Now, nowadays, that group is all but extinct, the surviving members of the old guard have really been forced into a stark choice, where they can either preserve their party credentials. And that usually means proclaiming loyalty to the leader of the party these days, who’s Donald Trump, and it means ditching, at least in public, their pro environmental views, or the alternative is to just kind of be expelled into the political wilderness, they could join the Democratic Party, which they might disagree with on other issues, or just not be part of politics in any really serious way. So that’s, that’s one major shift. That’s that has happened over the last 20 years. The other is the transformation of the global order. So my colleague, Paul, Stephen and I, on a recent podcast talked about the breakdown of what Paul characterizes as international liberalism. And international liberalism is a set of kind of views and institutions that built up over many years, and kind of its core is made up of strong international institutions. One
promotion of free trade, which is another important component, as well as the spread and promotion of human rights. And when in 2003, when Dec was working on the global getting the global administrative law project off the ground, it was very difficult to see or foresee developments like Brexit, or the stagnation of the World Trade Organization. Things like the spread of right wing nationalism, protectionism, public opposition to immigration, Russia’s invasion of Ukraine, all of these things were very difficult to foresee at the time, the world looked like it was on the steady, maybe even fast track, kind of moving towards economic and political integration and maybe even unity. That was that was the way things looked right up until the point where everything started to fall apart. Now, in hindsight, again, as of 2003, some of the cracks in the regime of international liberalism when we’re already showing, so when I started law school at New York University in 2003, of course, the the terrorism attacks on September 11, were still very fresh in memory. And the US invasion of Iraq, which turned out to be disastrous, had just begun and was, you know, just getting started the invasion and occupation, the lead up in execution of the invasion occupation, the trumped up weapons of mass destruction, the, you know, the the rhetoric around the Coalition of the Willing the human rights violations at Guantanamo, and Abu Gharib the insurrection in Iraq and the resulting instability. All of this was going to do tremendous damage to the legitimacy of the United States and ultimately, the international order that the US helped to build and maintain. But, you know, again, this had kind of gotten started in 2003. But the consequences, what’s his always going to look like, was much were just not very clear at all at the time. What we thought we were studying at that time was the dawn of a new age of cooperation, where the important legal questions would involve, really would revolve around how best to cope with the new power that was being executed at this transnational level. So that was mostly concerned with the declining sovereignty of the state, the transfer of power and authority to these institutions that weren’t embedded in the same legal culture that didn’t have the same surround of institutions, like, you know, courts doing judicial review, or transparency requirements, or so on. So is this concern about moving decision making after this, you know, at the international level of transnational level, so everything looks very stable, the international liberal order that was constructed, you know, really out of the wreckage of World War Two, and which had outlasted the Soviet Union and international socialism and all of its associated institutions. It seemed that what was happening is we were transitioning towards a really, truly global regime. And so it looked like a dawn it looked like the dawn of this new global regime, but it turned out to be more like a twilight. You know, the fallout from the wars in Afghanistan and Iraq, the 2008 financial crisis, the failure of climate negotiations, and then the rest of it, Brexit and Trump and right wing nationalism, and the invasion of Ukraine, and everything else was on the horizon. And of course, we didn’t, we didn’t see any of that. We didn’t know that any of that was, was what the future held. Now, obviously, this is a little bit of a downer, as to observations. And there have been positive developments in the last 20 years as well. For example, there’s been a massive and underappreciated reduction in global poverty. There’s been progress on social issues like marriage equality, and of course, extraordinary technological progress in areas like biotech and artificial intelligence. But the political agenda that Dick Stewart embodied the kind of moderate republican ism pro environment, pro market, same time, favoring international order, trade and cooperation, that has suffered immense setbacks, and the decline of that agenda has had real consequences for environmental law and policy. So dialing things back even further, in 1975, which is a you know, almost 50 years ago now, tick published paper, which was his most important work its most influential work. The paper was called the reformation of American administrative law is one of the most cited and influential law review articles really ever. Certainly in the area of administrative laws is kind of field defining work. So in that article, that describes several changes that were happening at that time, that were fundamentally transforming the relationship between courts, interest groups and the government and so on. Article is complicated. There’s a lot going on. But the changes that he described include new rules on things like access to courts, the rise of litigation by environmentalists and other groups, changing roles for interest groups and courts and agencies and the changing political dynamics within agencies and again, the relationship between agencies and courts. So, in my own work, I’ve argued that this reformation that Dick described came about, in part due to the partisan dynamics of the time. So what has happened, as of circa 1975. And actually, of course, he was writing the paper even earlier than that, what now, in retrospect we see is that the country had entered a period that you could call a period of divided government, that was the kind of the partisan structure that we were kind of entering into. And what that meant is that we were going to have essentially, Republican presidents. So Republican control of the White House, I started with Nixon basically uninterrupted, except for Jimmy Carter, who was actually kind of a peculiar Democrat, also quite conservative compared to many of his colleagues. And so you had a period of Republican dominance of the White House, but democratic, mostly dominance of Congress. And so that’s the period of divided government, that that we were just at the beginning of experience. And when Dick wrote his paper, reformation of American administrative law, and that was, of course last through 1992, with Bill Clinton’s election. And so and what was going on with the courts at that time, is that there was kind of over the course of this period of divided government, gradual transition from the like, on who, who the judges were, you basically had New Deal holdovers at the beginning of the Nixon administration. And, of course, you know, folks who’ve been appointed by, by the late you may be called the late New Deal, period, Great Society period. So, you know, basically, these are pretty, pretty democratically oriented judges. And you have this transition over that period of divided government toward the judges that were, you know, appointed by Nixon, and then and then Reagan. So there was a real shift in the judiciary over this period. And so what, in the early part, and the portion of this era that Dick was characterizing in his paper, was really focused on or at least that was, that’s my argument, how you were seeing this interaction between the New Deal holdovers, who are still in control of the courts and 1970s, dealing with agencies under Richard Nixon. And where you had shifted into this regime where you were going to have kind of Republican leadership and really serious Republican leadership, quite a different party, quite different from Eisenhower even. And so what kind of what’s happening is, you’re the Republican presidency, you had agencies that still had mostly New Deal style Democrats in them. You had a Congress that was, you know, democratically controlled, and was even kind of pursuing an ever more aggressive regulatory agenda in areas like environmental and safety, and public health. And, and that was the dynamic where the courts were kind of interposing themselves over agencies more being more aggressive in their review, opening the courthouse doors to more types of interest groups that were maybe traditionally affiliated with the Democratic Party. And this was leading to doctrinal changes in administrative law that that didn’t characterized. And, you know, this Reformation period, kicked off a half century of fights over the role of agencies and courts. And all this is still a hot topic today. And so part of the reason why this paper is so important is because Dick really identifies these issues, right? Right at their beginning, right when they’re starting to happen. So today, you know, in reflecting on Dick’s work a little bit, and just things in environmental law that are happening, I’ve been kicking around the idea for an article with kind of a partial homage to this 1975 paper with the title, the reformation of US Environmental Law, or American environmental law. And
you know, what my view is that this reformation has been initiated by the political trends I was just describing, right. So this is the death of bipartisan cooperation on environmental issues, if not on everything, and the breakdown of the liberal international order. I’m not sure whether I’m going to end up writing this paper or not. I currently have a book project that I’m focused on. So we’ll see about the paper but I figured with the podcast for the end of the year, I can at least sketch out the basic argument here. And you know, this maybe will be the final final product or maybe it will turn into a paper at some point. So the basic claim of this environmental reformation of that we’re experiencing now is that the kind of the sea change moment happened and 2020 to the summer of 2022. And there were two major developments in US Environmental Law that happened that summer. So one was this case, West Virginia v. EPA, which, in effect struck down an Obama era effort to regulate greenhouse gas emissions and kind of forcefully articulates what is referred to as the major questions doctrine. And what’s happening in this case is, again, really renegotiating the relationship between courts and agencies, where it seems as though we’re going to see courts playing a much more aggressive role, dialing back the degree of their deference to agencies. And, you know, especially given the conservative control of the Supreme Court that’s got a highly partisan dynamic. So that’s West Virginia, V. Pa. And and I had a podcast earlier this season with Lisa Heiser lane where we talk about that that case, if you’re, if you’re interested in hearing a little bit of the kind of the legal background of how we got to West Virginia VPA. And putting it in the context of some prior decisions by the by the US Supreme Court. The other big development in the summer of 2022, was the inflation Reduction Act, which is a bit of a misnomer, as everyone knew at the time, it’s, or not entirely, but importantly, a major piece of climate legislation. So this was in the United States, as far as I can think of the first, certainly the first major, one party environmental bill, where it was essentially, I think, in that case, a fully party line vote. But we, environmental legislation just hasn’t proceeded that way. environmental legislation, basically has been a bipartisan affair in the past. And so this is a really big, really important change from how environmental law, environmental statutes, at least have been made in the past. And there are other differences in part, you know, maybe related to that. So one is that it’s a spending package. It’s not a kind of a regulatory bill. Now, of course, a regulatory bill would have required more votes, and the Democrats were really going to only be able to muster enough to get over the 50 vote mark in the Senate, they weren’t going to be able to get over the 60 votes necessary to do substantive legislation, at least under the filibuster rule. And so. So that’s an interesting element of the dynamic. But it’s also part of this broader shift in emphasis in environmental policy in the in the US towards something that we can refer to as industrial policy, which is a different way of thinking about how to do environmental regulation than we really have focused on in the past. So this, this is the sea change. This is the moment where we can really see a difference in environmental law in the US. And these are changes that have been in the works for a long time. But you know, they kind of come really starkly into fruition in this summer of 2022. So how do we interpret this this change? How do we put the summer of 22? In a little bit of context? So I’ll make a couple of different claims about how we should think about 2022. And how environmental law is being reformed in the United States. So one is to understand one important thing to for context here is to understand what the new order, I guess we could call it the order that begins or comes to fruition in 2022, the reformed order, what it replaces, and appointed kind of bears emphasis here is that law, I think, in general, but certainly environmental law, in the US kind of works through a kind of a process of accumulation, almost like a sedimentary process where the new law doesn’t really replace the old boss, or the new stuff doesn’t replace the old stuff. It kind of sits on top of the old stuff. It kind of gradually builds up over time. And sometimes you can wipe away an old regime that is definitely possible. That’s something that can happen. But it’s kind of not the normal thing. Often it’s this process of accretion over time. And this makes sense for many reasons, in part because people have Reliance interest in how the law works. We’ve structured our society and our institutions and our lives in our physical infrastructure around the old law, and if we were just constantly changing the old law all the time, it would be extraordinarily disruptive and very difficult to arrange our lives and make investments and make plans and So we kind of have an expectation of continuity in the law. So when new law comes along, we all kind of accept that there’s gonna be some new law, that’s okay, that kind of fits. But we expect that new law is going to kind of sit on top of the way things work. And you know, the grid changes are going to be a little bit more gradual. So that could be kind of disruptive thing, we’re going to just get rid of the law and have entirely new law. Again, it can happen, but it’s not the normal way that things work. And so we could think, in the kind of broad history of US Environmental Law, that there’s been this sedimentary, or this creative process, where you have different kinds of waves or different periods that are building on prior periods. And so there’s a period where, you know, we’re focused on things like national parks and conservation, and you know, resource management and forestry and those kinds of those kinds of issues. And this is kind of in the mid 20th century, a period where you during the New Deal, of course, we have this dam building stuff that’s happening, right. So it’s a it’s law, it’s certainly related to the environment, maybe it’s not exactly how we think of environmental law today. But that was a different paradigm. And it still, of course, operates, we still have natural resource regimes, we think about fisheries, we still have plenty of dams. We still operate, you know, our forests, and we still have national parks. And so there’s all that all that all those regimes still exist. And they’ve, of course, evolved and changed over time. But that at the base, there is still this, you know, this kind of prior understanding, because it’s still with us, but it’s, it’s the institutions and infrastructure and the ways of thinking and so on that kind of came into being during during this period of time. Okay, so that’s one, and then we have, you know, later we have different kind of waves of environmental law and policy. And so there’s the, you know, the the big wave that comes in the 60s and 70s, with the first Earth Day and, you know, Rachel Carson and, and the major environmental legislation, the Clean Water Act, and the Clean Air Act, and the Endangered Species Act, and the National governmental policy act, and all of these huge, you know, Cornerstone environmental statutes that are happening at that time. And my claim here that I’ll make for you, is that that major bipartisan legislation in the 1970s, and that flush, that we have their result resolves into a series of debates over what I’m going to call environmental governance, okay, Berman segments. So how do we go about the business of actually implementing these statutes actually, governing, you know, pollution and, you know, building institutions and building regulatory systems that are going to achieve our environmental goals, you know, cleaning up the air, cleaning up the water managing, making sure that we’re not causing an extinction of species, and kind of redirecting our economy, at least in ways, in ways big and small as to say that away from more environmentally harmful and towards, you know, less environmentally harmful toxics regulations, part of the story, of course, as well, cleanup of Superfund sites, and so on. So anyway, so you resolve into a series of debates over environmental governance, that are basically going to dominate the conversation on environmental law and policy, coming into the 70s, through the 80s 90s. You know, and then and then we start to hit this, you know, this 2003 inflection point that I’m talking about. And, and the changes that, you know, I mentioned, mentioned earlier, right, with the breakdown of the bipartisan consensus and the breakdown of
the liberal international order. But before we hit that break down, right, there’s this kind of environmental governance conversation. So within that conversation, there are four main topics that people are interested in discussing risk management, instrument choice, administrative governance, and cooperative federalism. So let me just describe these two, because what’s going to happen here, again, my claim is, is that this system of environmental governance, with the conversations about risk management, instrument choice, administrative governance and cooperative federalism, this is what’s going to be reformed, right? It’s going to continue to exist, and it still does continue to exist, but something else is going to get layered on top of it. And that’s the Reformation that we’re experiencing right now with the new regime. So this is an old order, which again, is going to continue to exist, but there’s a new regime that’s gonna sit on top of it. So I’m just going to quickly describe these four conversations just to get a feel of, of, you know, what, you know, what really dominated the conversation before the new regime. Okay, so risk management. These are questions about how to study environmental harms, how to understand them, and then what to do about them. Okay, so the big debates are like how to use science The relationship between science and politics. You know, there’s debates about what are called Trans scientific questions. So mixed questions of science and policy. Many of these debates revolve around cancer and the study of carcinogens. But of course, you know, they then move into debates about things like climate change. So for example, we might a kind of classic example of a trans scientific question is, what is the proper dose response curve for carcinogens, certain types of types of carcinogens? So you have chemicals? And you have to figure out what is the relationship between exposure to these chemicals and your likelihood, one’s likelihood of getting cancer? And it’s actually very hard to answer these questions. Because because there’s not a lot of data, we often don’t have the data that we might want to try to answer these questions. And so maybe there’s animal studies, or maybe there’s very limited epidemiological studies. And then we have to kind of draw inferences from this limited amount of data to then make these dose response. inferences, you draw these curves with dose response curves. And these dose response curves are important because they’re going to inform things like how to set the relevant thresholds. So if we’re going to say workplace exposure has to be below some number, or we’re going to set an an ambient air quality level, you know, we’re going to use these these types of estimates, these empirical estimates of the relationship between exposure to some environmental harm and then some negative outcome. And so there’s a huge amount of discussion about this. I mean, these are hard problems, like how do you make these inferences? How do you separate out the kind of empirical questions from the values questions? What role should there be for politics, if any, you know that this is just very difficult. And so there’s a lot of talk about the politicization of scientific institutions. And there’s talk of the scientists ation of policy questions. And anyway, that’s, that’s one part of the debate. And then another part of the debate on risk management is kind of how to set our goals. So like, what are the kinds of things we’re trying to achieve with environmental policy? And so these are debates about whether we should be using cost benefit analysis and trying to maximize net benefits? Or should we have other goals like trying to achieve zero risk, like eliminate environmental risk altogether, or we should have some alternative standard like feasibility, you know, reducing environmental risk as much as possible. And again, these are debates that we have at the statutory level, then agencies turn them over and courts turn them over. And they kind of just in we do it in the Clean Air Act context. And we do it in the Clean Water Act context. And we do it for different regimes. And these are just questions that we keep turning over and over during this period of time. So that’s one classic questions. And other classic questions is on instrument choice. So should we be using kind of regulation and rules and command and control style? Where we, you know, say agencies have to use these kind of specific technologies, or they have to achieve some level of emissions reduction, or whatever? So that’s a more of a command and control style approach? Or should we be using things like emissions fees, or cap and trade systems or more kind of generally flexible market based incentives? So this is another big conversation. Lots of people are talking about this, actually, Dick Stewart plays an important role in this conversation in early piece where he argues in favor of the value of market based mechanisms and some of the advantages that they have over over command and control style approaches. And so there’s debates about Yes, should we use design standards which require particular technologies, basically, or performance standards, so require a particular performance to achieve a particular environmental performance. And then a big important moment in this instrument choice debate was the adoption in the 1990, Clean Air Act Amendments of a big trading program, the acid rain trading program, which instead of being a regulatory command, and control style approach created a cap and trade system for, for the pollutants that cause acid rain. And what we learned in the subsequent years is that program was an enormous success achieved incredible amounts of emissions reduction at quite low costs. And so that was really the program that served as a template for a lot of thinking about how we were going to address climate change. Okay, so that’s the second kind of category of things that we talked a lot about during this period of time. A third was the questions are on administrative governance. So these were like questions of round, the deference that courts were going to have two agencies, and we built up a particular structure of how courts and agencies were going to interact. So this is characterized by two big cases at the Supreme Court. One is this famous Chevron case, which established that agencies were going to get deference when they’re interpreting them the statues, the statutes that they administer. And then there’s this case State Farm that kind of articulated how courts were going to use their power or their review authority under the arbitrary capricious standard of the Ministry of Procedure Act. And so there was this kind In a mix of deference and statutory interpretation, but relatively probing review of agency’s decision making process, making sure that they kind of took a look at the right stuff that they engaged with the relevant science that they looked at the problem, you know, kind of through multiple lenses that they took into account the comments and concerns that were raised by external parties. So that’s, so there was kind of a lot of conversation about that. And then also, questions around international integration, like how we’re going to work together on certain types of global problems. So the the big important thing, really one big important thing, at least that happened during this period of time was the Montreal Protocol, which deals with ozone depleting substances. And so this was like this huge success of the international order, we kind of got together, we negotiated this treaty, and we really tackled what was an incredibly important problem, which was the we were putting out pollutants that were gradually destroying the ozone layer, which was incredibly interesting for us to be doing, and I’m really glad that we got on top of that. So and then, you know, but we were thinking about other things as well, with less success, you know, container species, you know, we start to global climate change obviously gets on the agenda at some point. And so that’s this other question around administrative governance is kind of how to think about dealing with some of these international issues. We turn that over in our head quite a bit. Can you integrate environmental concerns into the global trade regime? For example, there was a lot of conversation about that. And so in any case, that was another set of questions that arose. And then finally, there was a lot of discussion of cooperative federalism, how should the federal government work with the states? What’s the appropriate role for both of the these different levels of governance? What should the federal government do? What should the states do is their role too, we need the states. So we need the federal government, most people recognize we need the phone number for some stuff, at least during this process, you know, just as one example, there’s a lot of kind of back and forth over the implementation of the Clean Air Act, the states are implementing the federal government’s overseeing this unhappiness with how that relationships going was problems dealing with interstate, interstate air pollution problems, like acid rain. And so in any case, there’s just a lot of conversation about what is the appropriate role for these two, but the idea was that they were working together in this kind of cooperative, cooperative arrangement with each other, even if they might kind of have some different perspectives or different strengths and weaknesses. Nevertheless, there was this, this notion of kind of cooperating. Okay. So that’s the old order. That’s the, that’s the these conversations, which we will no doubt continue to have. But these are conversations that we’ve been having for a long time. Now, the two big developments, the breakdown of the parties of the bipartisan coalition, or any kind of bipartisan cooperation and the breakdown of the liberal international order, okay, that has added, let’s just say a new regime that at the very least, is going to sit on top of the old regime, and it might eventually wipe away some parts of the old regime. So there’s four different conversations that we are now kind of focused on, or some of the conversations have transformed a little bit in the new in the new world. So the risk management conversation, which was very much focused on kind of aggregating net net benefits, and kind of overall, overall social, you know, well being or whatever, has moved much more to a conversation about distribution. Okay, so that’s one big change.
So there’s a much stronger emphasis on environmental justice issues within the environmental community, like way stronger. This is the way that actually a fair amount of tension between environmental justice groups in the traditional old line environmental groups in that kind of old order, that hasn’t been altogether resolved by any stretch of the imagination, but there’s been a lot of we might call progress in integrating environmental justice into kind of the mainstream concerns of the mainstream environmental groups. And they certainly talk a lot more about that and much bigger part of their advocacy agenda. So so that’s one on the other hand, the folks who oppose environmental policies these days often focus on the distributional consequences as well. They’re just focused on the costs. And so they talk a lot about jobs. You know, that’s become kind of the major attack line on environmental regulation is that these certainly that was true under the Obama administration, quote, unquote, job killing regulations. And so, so both on the benefit side and on the cost side, on the advocacy side, you know, advocacy for environmental protection are the folks who are opposing environmental protection, huge emphasis on the distributional consequences and much less emphasis, I would say, on kind of the aggregate social effects. And then we see things like, you know, even a very technical issue like the the a4 circular which is a document that describe bribes, how cost benefit analysis should be done throughout the federal government. And, you know, my my frequent collaborator and friend Ricky Rivas, who’s the IRA administrator oversaw kind of a revision of the a four circular. There’s now much more discussion of distributional analysis. And that’s not surprising a lot of people have been talking about that. And there’s been a lot of work in economics, environmental economics, to think about how we ought to incorporate distributional analysis into our thinking. But in any case, this reflects the broader shifted the conversation to, to distribution. Now, again, this isn’t to say the four circular jettisons concerned about aggregate costs and benefits, that’s still obviously a huge emphasis, but we’ve now layered on top this distributional conversation. And then in an inflation Reduction Act, there’s a lot about environmental justice, there’s a lot of spending, obviously, in a spending package is going to be about distribution. And so there’s there’s there’s spending and kind of prioritization of spending and funds. In the Biden administration all has all kinds of initiatives on environmental justice that they’ve been working on over the years, over the past, you know, course of its administration. And so, so there’s this really big emphasis on environmental justice, and distribution, that’s kind of, like I said, layered on top of, at the very least, the conversation about efficiency, okay, the conversation about an instrument choice has morphed as well. So, one, you know, basically, the, what was once a conversation, really, that boil down to command and control versus market incentives, has really turned into a conversation about industrial policy, at the very least, industrial policy has been kind of added to the mix of instruments that the that we might envision the government doing, and are the indigenous, you know, as as how the government kind of achieves its goals. And arguably, it’s become like, the main emphasis of our politics is how we’re going to do industrial policy. In who’s going to be the winners, who’s going to be the losers? And what do we mean, what do I mean by industrial policies, so this just is where the government rather than setting kind of like neutral rules that are at least facially neutral, that are kind of generally attended to apply across the economy, and that you either comply with you know, that you that all the economic actors are kind of supposed to go out there and figure out how to comply with, and the most neutral version would be something like a carbon tax, you know, or a cap and trade system. So that’s the kind of a regulatory approach and industrial policy is basically, the government’s going to say, this is how we want our economy to operate, we’re going to spend money over here to do investments for these kinds of technologies. And, you know, we’re gonna favor some technologies over others, we’re going to, you know, build infrastructure that’s going to support different kinds of technologies, it’s much more kind of a hands on managerial, managerial approach to the economy. And, you know, the thinking is that industrial policy had kind of gone out of favor in the 70s 80s, and 90s. And maybe up through, you know, fairly recently, but it’s kind of come roaring back on the scene as a, as an approach to policymaking, especially within the Democratic Party. So where do we see this, so you really see the beginnings of this conversation, or, you know, kind of an important flourishing of this approach, with a discussion around the green New Deal, and that kind of rhetoric. And so the that, you know, that idea that we’re going to, you know, again, we’re going to really use the government to achieve our economic goals, or justice goals and our environmental goals all kind of simultaneously, basically, through spending. That’s the idea of the green New Deal, more or less, and, you know, eventually that gets translated in a watered down, obviously, diminished version into the inflation Reduction Act. And the idea here is that we’re focusing on spending rather than regulation. But there’s also other important components such as broad spending, put money in everybody’s pockets, we’re obviously selecting particular parts of the economy that we want to spend on, we’re doing investment in particular technologies in particular approaches. And, you know, very important part of the IRA is there’s a lot of frankly, protect protectionism and kind of us orientation, right. So this, of course, famously in the in the limitations on which automakers and are going to be able to qualify for for tax credits and the components and the battery, where the batteries are going to come from, and all that kind of stuff that it’s just intended to do industrial policy in the United States where we’re gonna be spending money, we want it to be spent in the States. That’s kind of the theory. And there’s other components of this as well, like a lot of the IRS a spending has at least chunks of it components that are intended to provoke for example, unionization or union jobs. And so, again, the government’s kind of taking kind of a fairly strong hand to say like, what our industrial arrangements should look like. Okay, so that’s industrial policy. So shift from a conversation instrument choice command and control versus incentives to this conversation about how industrial policy is going to be done. Okay, so then the third here, the third key translation is, like I said, this question of administrative governance, like how what’s the best relationship to set up between agencies and courts and the like, to something that’s more like anti administration, the courts have really, especially with this West Virginia V, EPA decision and others that are kind of teed up right now, in this position of very seriously dialing back, the at least attempting to dial back the administrative state, imposing much more substantial judicial controls, really acting like a gatekeeper on on any substantial regulatory policy. And so this is the major the major questions doctrine where basically the court says, if we think a question is important question of statutory interpretation, we’re going to decide we’re not going to give it the any deference to the agencies, which is a very, you know, that’s, that’s, that’s a big move. Right. So there’s a big change from the deference regime before where the courts basically said, Unless you unless your interpretation, like conflicted with an unambiguous statute or was kind of facially like on its face on reasonable, then we’re gonna let it go here, the court saying no, we’re just going to like interpret it, we whatever we think is the best is the way it’s going to be. So that’s a very big expansion of the courts powers are very clear, and obvious and aggressive expansion of the courts power in the regulatory domain. And so this kind of moves decision making away from administrative agencies out of the realm of administration, and into the realm of courts. And so I think you could characterize this as instead of being about how to structure administration, this is really an anti administration approach to administrative law, it’s really about, yep, just just dialing back at the administrative state, and moving decisions over to the courts. And then finally, just this final translation of the new regime, is the shift from cooperative federalism, to antagonistic federalism. And other scholars have noted many of these things that I’m talking about right now, actually. But in any case, the you know, others have written about this, but just to just to explain what I’m talking about. The, you know, here, what we’re, instead of states and the federal government, kind of roughly working in cooperative structure, but we have estates just like fighting with the federal government. So you know, when the, when there’s a Democratic president and states or, you know, certain states, red states are suing and making life difficult and making it and, you know, fighting constantly with EPA and undermining the regulatory approach. And then, of course, under Republican administrations, we just get the opposite, where it’s the blue states that are suing and fighting, and so there’s just this highly antagonistic relationship between the federal government and like, you know, a bunch of states. And, and, you know, just kind of depends who’s in the White House, which states are having an antagonistic relationship with the federal government. So that’s one well known area, but we also see this in, you know, fights over like siting, especially around renewable energy. So you have some states, you know, putting in all kinds of rules that, that make it difficult for, for citing to happen for major renewable facilities. And so this is, you know, again,
one way of kind of being having an anti antagonistic relationship, visa vie federal policy, when, you know, of course, after the inflation Reduction Act, the policy is to go out and spend money build things. And so states or some states in the case of trying to slow that down. So, okay, so that’s the, that’s the Reformation, that is the change, we’ve, we’ve shifted from the old regime, the old conversations, and we have an entirely new set of conversations. So we can see kind of how the two big shifts have led to some of these, the two big shifts, meaning, you know, breakdown, a bipartisan consensus in the liberal international order, have led us in this direction. So, you know, it’s not surprising, for example, when you move from somewhat of a bipartisan conversation to one where like, it’s just one party is going to be making decisions, and it’s just we’ll see which party it is that there’s more of an emphasis on distribution, you know, when it’s both parties, they’re, in some sense, looking out for the entire country, right, not just, you know, some subset thereof. And so, you know, and trying to identify a compromise and overlaps and so on. So, you know, an emphasis on efficiency and kind of, you know, what is good for everybody and what ag maximizes the aggregated, you know, whatever, the National well being national interests, it’s not surprising that that would get converted over into, you know, delivering for constituents, you know, either democratic constituents or Republican Party constituents. So, that’s just one example and you could kind of see that playing out in the in the other areas as well. To use the industrial policy. Um, we’ll use that as the other as the other example. And, you know, we could see how that might, you know, be part and parcel of a breakdown of conversation between the parties. But that’s also nicely illustrative of the breakdown of liberal international order. Because, you know, one of the basic premises of the, that liberal international order is free trade, it’s, you know, it’s certainly, you know, free, it’s generally free market oriented. And this industrial policy move really is contrary to both of those principles. So, you know, the inflation reduction act outside the United States is seen by many is a hugely protectionist, that, you know, really de emphasizes the, you know, taking advantage of the international trading system in order to kind of allocate, you know, production of green technology to wherever it happens to fall in the world, wherever it’s cheapest. And instead says, No, we’re gonna do this in the United States. And then that’s just basically protectionism whether you like it or not. That’s, that’s what’s going on. And so, with the US, as you know, the country that has been the most stalwart promoter of the free trade system, then engaged in what kind of is broadly incorrectly seen as, you know, kind of a protectionist orientation in its in its environmental policy, that, obviously, is part and parcel of the broader decline of the liberal international order. And we could tell some more stories about the about the anti administration to move their antagonistic federalism, but I think I think we all kind of get the picture here, which is that these two big trends, part bipartisan breakdown, global order breakdown, are having these kinds of very specific consequences for how we think about and talk about environmental policy. Okay. So I will have been at this for a while. So I will talk a little bit about what I see as some of the big, important conversations going forward in this area, and then and then we can wrap up. So, you know, how do we navigate in this new in this new regime? And what can we expect will be the will be the how conversations will play out are going to be some of the complications, what are some of the opportunities? So one interesting conflict that we’re already seeing is going to be between renewable energy companies, the renewable energy industry and the environmental community, you know, they’re going to work together sometimes, and they’re going to have conflict with each other. Other times. So one big area, this was where this comes up is on siting reform, you know, changes to the National Environmental Policy Act, other changes, that would be would make life easier for the renewable power industry, so they could build lots of new facilities, but there’s going to be resistance by the environmental community by the environmental justice community. So that’s just one fight another fight design like say, nuclear power, for example, you know, do we want nuclear power do not want nuclear power, is this part of the energy mix going forward, and so on, then you have to cite transmission lines, and, you know, all of the stuff that we need to do to address climate change is going to come with local environmental impacts. And if these decisions are kind of just going to be made via industrial policy, we can, we can imagine that there’s going to be conflict within that within the Democratic coalition on these issues. So this is kind of a way of thinking about conflict, intra party conflict that we’re going to see in the new regime is going to be a lot about, you know, development versus traditional environmental concerns. So what about intra party conflict on the other side, on the Republican side? So, you know, there is a problem that the Republicans face on these issues, which is environmental protection remains pretty popular. Even if it’s not every Republican priority, and if even if they try to, you know, some policy entrepreneurs try to undermine that popularity, if there’s still a base idea that the Clean Air is a good thing. Climate change is happening, it’s gonna get more intense over time. And that’s not a good thing for the world. But it’s certainly not a good thing. If your political party is structured around denying that that reality. And, you know, there’s generational shifts, obviously, young people are, are more engaged on issues around climate change, and you know, that’s likely to intensify. And this is against the backdrop of the Republican Party having an extremely difficult time building something like a national Democratic majority. I mean, basically, one popular vote has been won by a Republican presidential candidate. Since I guess the last we saw you had 1988 When George HW Bush won, and then since then, his son won his second one. His first son, George W. Bush, won his second race, right in 2000. For he won the popular vote. Other than that, the Republicans have not won the popular vote. And that’s a long time. And so the only way for the Republican Party to remain in power is basically by, you know, the luck of the Electoral College and gerrymandering and all that kind of stuff. And that’s just not sustainable. That’s not sustainable for the long term. And so somehow, some effort is going to have to get made to expand the attractiveness of the of the party’s platform. So how’s that going to work? And how’s it going to fit in with the other ways that the Republican Party is changing? You know, who knows, that’s anyone’s guess. But you can imagine some things like, there’s certain environmental policies, even climate policies that could fit in with like an anti globalization kind of arguments, that the party that’s have kind of favoring the party these days. So these are things like trade barriers, you know, carbon border adjustments in the like, you can imagine a carbon tax and dividend being framed as an as a way of reducing immigration, right, because if you dividend money to say US citizens, or green card holders or whatever, and you raise electricity prices and raise the price of goods, there are a carbon tax, you know, that would likely have the effect of reducing the certainly the economic incentive to, to migrate to the US. So, so in the case, who knows what, what’s what’s going to happen, but it does seem like there are there’s room for inter intra party conflict on the Republican side, you know, trying to figure out how to expand the, the base of the party, and you know, this is likely going to play out, when the party figures out what it’s going to do post post Trump. You know, at the international level, this is kind of worth thinking about. So, if we have a breakdown of the international order, we have, if not disintegration of the global trading system, we might worry about, you know, the renewed competition for energy, we were already seeing this, obviously, with conflict over over Ukraine and Russia’s invasion of Ukraine, in the response in Europe, you know, having to deal with, you know, changing its energy supplies, the US energy, the explosion of fossil fuel production in the United States is now kind of broadly understood as a strategic asset, not just kind of a nice thing to have, but part of the GOP kind of political situation. And so all of that is disconcerning, right? Because it really promotes continued reliance on fossil fuels and building these strategic relationships. And, and it can make it difficult to wean ourselves off of these off of these sources. On the other hand, you might hope that you with the growth of renewables, maybe with maybe nuclear, maybe storage of this is also seen as an energy energy independence move. Of course, that’s going to create issues around things like rare earth elements. And so you will probably expect to see continued growth on all energy sources. That’s not good news. In a sense, because it’s good, when as much as we’re relying on green sources and low carbon sources, but
we’re not going to make progress on climate change if we continue to build fossil infrastructure and burn fossil fuels. And so the kind of geopolitical dynamics around energy are going to seem to be intensifying and getting and making it making cooperation very difficult. Also, just generally, building international institutions, the kinds of international institutions that we would need to construct and enforce a really serious climate change regime. It’s just very difficult when countries are like fight fighting wars with each other, like how are you going to have a constructive conversation about reducing greenhouse gas emissions when you’re like literally dropping bombs on each other? So so that’s a challenge, no doubt about it, that we’re going to face in the coming years. Okay, so just to just kind of wrap up this, this conversation, it’s a bit of a downer, but at the same time, it’s I mean, it’s a difficult time, there’s no, it’s good to just confront that and just recognize the challenges we face. It is not clear, frankly, from where I sit, how we’re going to make progress in the in the coming years, you know, we face global challenges on environmental issues, and they seem to require international conference cooperation, the institutions for that cooperation are not nearly as robust as they seem to have been. And, you know, I think we’re still in the process of figuring out what if any new institutions or you know, same institutions and slightly different form, what that’s all gonna look like. And then obviously, if we can’t, if we can’t get our act together at the domestic level, especially in the United States, then you know, it’s just hard to imagine and how progress is going to made made and especially as we, you know, we see this kind of growth of right wing ism populism, anti globalization around the world, you know how all that translates into something like a sensible, you know, set of policies on climate change, for example, is it’s a little difficult. But on the other hand, this another lesson, I think, when I think back to 2003, is that nothing lasts forever. You know, when you when I cast my mind back to 2003, it seemed at the time, like we had a clearer picture of the future direction of things with, it seemed like, you know, there was there was a lot of agreement about where the world was going and what the challenges were going to be. And basically, everybody was totally wrong. Maybe a handful of people may have predicted, you know, what we ended up seeing, but there’s always doomsayers, and so there’ll be right some of the time in any case. But generally speaking, the consensus view was was just off, it does, there was a lot of developed many developments that were not anticipated. And I, you know, I don’t know what the future holds. But I strongly suspect that whatever I think now is probably wrong. There are gonna be developments, both good and bad, they’re going to shift the landscape just as you know, developments over the last 20 years have shifted the landscape. So we are in a particular moment, the moment that I just described, I think the new regime, the reformation is real, we really have built a new set of conversations that we’re likely to turn over for some time. Anyway, that would be my view. I think that that’s that I think that’s right, I think we will be turning over this, you know, these newly infected conversations about environmental law and policy, but it’s going to break down there’s going to be another reformation there’s going to be other changes that are on the horizon. And so the kind of the current what can seem like the an impasse right now is not going to last forever, maybe there’ll be a different impasse but there might also be a breakthrough as well. And so that’s the end of the of the your message. It’s not exactly optimistic in the sense that it’s just kind of like things are bad, but they’re probably gonna they’re gonna change. Things are not great in any case, in this in this domain, but you know, what looked like a dawn turned out to be a Twilight and maybe what looks at looks like a twilight now will turn out to be a dawn and only time will tell. So thanks very much for listening. If you made it this far on the podcast, consider joining Patreon as a member if you if you if you find value in these podcasts and want them to continue, and generally best wishes for an end of 2023 and a prosperous and hopefully, more peaceful 2024
Free Range Podcast 