democracy – Free Range Podcast

Season 2, Episode 12

On this episode of Free Range, host Mike Livermore is joined by Harvard Law professor Richard Lazarus. Lazarus is the author of the book “The Making of Environmental Law”, which is now out in its second edition. One of the key takeaways from Lazarus’ book is that environmental law is especially difficult because environmental science and economics collide with the lawmaking system. Ecosystems naturally spread cause and effect out over time and space. Therefore, activities that occur in one place at one time have consequences that arise at another place and time. Regulation and lawmaking systems struggle with this because these laws regulate people at one place in time for the benefit of another group at another time, leading to substantial distributional consequences. (0:36-16:03)

The distributional effects of environmental law have also contributed to the current polarized political situation regarding environmental action. In a state like West Virginia, there were political gains to be made by the Republican party by opposing climate regulation, because of the local economic costs of reducing the nation’s reliance on coal. As the parties vie for different constituencies, polarization naturally arises when groups opposed to or supportive of environmental protection sort into the two parties. This dynamic has played out over many issues in the past decades, but environmental policy may be particularly prone. (17:50-31:05)

The two then discuss environmental justice and its ties to the polarization of environmental law. Lazarus reflects on how his view of the topic was changed when a student in his hazardous waste class inquired about his theory that waste sites are more prevalent in minority neighborhoods. That interaction ultimately led Lazarus to rethink how he approached environmental law to focus more on race, class, and fairness issues. (33:30-44:21)

The conversation wraps discussing polarization and the role of the courts. Lazarus offers his view that attention to fairness issues and the commercial opportunities presented by environmental transitions can help build a bipartisan coalition in favor of environmental protection. The two then discuss the two most recent major environmental cases in the Supreme Court: West Virginia v EPA and the Sackett case. For Lazarus, the West Virginia decision to uphold the repeal of the Clean Power Plan was irresponsible but not out of bounds; it prevented an ambitious future plan for environmental protection, which had a solid, but not unassailable, statutory basis. He sees Sackett differently because it relied on shoddy interpretation of the Clean Water Act to undermine a longstanding and successful environmental program. Despite this, Lazarus has a somewhat optimistic view of the Court. Even if it will continue to be an obstacle to executive action to protection the environment, if it is possible to pass new environmental legislation to address issues like climate change, he believes that the Court will not get in the way. (47:28-1:06:23)

Season 2, Episode 6

Transcription

On this episode of Free Range, host Mike Livermore is joined by Alex Wang, Professor of Law at UCLA, co-director of the Emmett Institute on Climate Change and the Environment, and expert on the law and politics of Chinese environmental governance.

Beginning with Wang’s initial experience in environmental issues in China, the US, and the NGO community, he discusses the generational and globally formative transformation he witnessed over his three decades in the field (1:37 – 9:36). After China’s entry into the WTO, there were some expectations for a broader economic and political liberalization. While there has been an increase in marketization and economic freedom, the Communist Party has maintained tight political control (9:37-14:26). Although formal political freedom is limited in China, Wang emphasizes that there are many mechanisms through which politics occurs; he also discusses important developments in the state’s administrative law and responsiveness to citizen demands in the past several decades. Wang discusses protests, concessions, and accountability that operate through less formal means, which can be effective at mediating social conflict, even if lacking traditional procedural fairness (14:27-22:18).

The conversation highlights the difference between the US and China in regard to responsiveness to recent large-scale protests which also speaks to the extremity of Chinese policy. While rapid change is possible in China, it is core to the design of the US political system to diffuse power, which limits capacity for rapid change (22:19-35:24).

Over the last two decades, there has been a large shift toward greater prioritization of eco-civilization and environmental protection in China. This transition is at the intersection of environmental, political, and economic change. Pollution began to be seen as a governance and social stability problem. Regarding the shifting geopolitics and the changing relationship between the US and China, the level of respect towards China has gradually changed throughout Wang’s experience over the past three decades. Globally, China has taken on a much more substantial leadership role, and power in the global system has shifted away from the United States and the single dominant player. Politics, energy security, and economic opportunities played a large role in China’s investment into green technologies, where they are now dominating the supply chain (35:25-53:47).

Wang covers the human rights story, symbolic politics versus implementation, and the issue of achieving climate goals in light of economic consequences (53:48-56:41). The US and China may be in competition for the foreseeable future, so maybe this competition can be socially beneficial. But is it an open question whether this proxy battle will be enough to fuel serious decarbonization (56:42-1:04:59).

Season 2, Episode 4

Transcription

On this episode of Free Range, host Mike Livermore is joined by Jed Stiglitz, a law professor at Cornell whose new book, The Reasoning State, was recently published by Cambridge University Press.

The podcast begins with a conversation on the love-hate relationship between American society and agencies like the EPA. These agencies hold a lot of power and are called on to address many pressing social problems, but they also seem to be a near constant target of political attack. (0:39-5:14) Stiglitz is skeptical that these attacks are genuine and sees them as playing a more symbolic role.

Nevertheless, the question of what legitimates agency’s authority remains. Stiglitz argues that expertise is not the sole reason that the political branches often delegate important decisions to agencies. For him, administrative process plays an important role. Agencies are bound by procedures, like reason-giving and independent review that legislatures are not, and fundamentally cannot be. (5:14- 15:12)

Stiglitz is interested in building a positive theory for how the normative commitments in administrative law could come about through the incentives of political actors. For him the story begins with the progressive era in U.S. history. As the economy became complex, large firms developed, government decisions become more difficult to understand, investigative journalism exposed bad practices, and distrust grew. Agencies, and the procedures of administrative law, were a response to this new environmental that at least partially mitigated the trust gap. (15:13-24:47)

The conversation turns to the relationship between rational choice models and the exploratory, evolution-like process that leads to lawmaking. Stiglitz sees rational choice as a useful summary of the forces at play, rather than an actual account of how decisions are made. A more historical account focuses on how human decision makers navigate a complex world full of uncertainty. Since the failed efforts of politicians go unseen, the end result of even a largely random exploration process can look quite rational. (24:48-31:42)

One issue for the legitimacy-procedure link is that the average person is not well-informed on administrative procedure. In his book, Stiglitz describes experiments that have revealed that knowledge on procedure affects how people feel about policy outcomes. He argues that the broader public can gain knowledge about procedure via media and other intermediaries. Livermore mentions that people also gain knowledge about administrative process through public comment campaigns, which could help increase legitimacy for agencies. Stiglitz remarks that agencies being subjected to judicial review is covered in the news frequently and therefore is well known. (31:43-41:05)

The two discuss the balance between too much and too little procedure: too much procedure hinders the efficacy of agencies by making it too hard to produce any policy; too little procedure results in distrust. Stiglitz also notes that procedure is inherently political and also naturally affects the outcomes of agency decisions. The procedure/substance barrier is permeable and perennially contested. With respect to the current state of administrative law, Stiglitz argues that we have too much procedure in some ways and too little in others. (41:06-49:11)

The podcast wraps up by discussing the role of politics in agency decision making. For Stiglitz, agencies are not completely technocratic but they can be fairly unpolitical. This is because agencies effectuate statutory objectives, which, while contested, nonetheless direct agency discretion. The role of politics in agency decision making is regulated and mediated by statutory directives. Even where statutory objectives are themselves the subject of political debate, there is still only a limited range of discretion in agency decision making. (49:12-1:00:39)

Season 2, Episode 3

Transcription

On this episode of Free Range, host Mike Livermore is joined by Alex Guerrero, a philosophy professor at Rutgers who writes in moral and political philosophy. Guerrero is a leading philosophical defender of the idea of lottocracy—the practice of choosing political leaders through lottery rather than elections.

The podcast begins with Guerrero’s diagnosis of the failures of our current politics and the limitations of reforms such as changes to the campaign finance system. (0:33 – 12:40) Guerrero goes on to challenge what he referred to as the “Churchillian shrug,” which is the view that there are no viable alternative to electoral democracy. For Guerrero, elections are a technology, and there is no good reason to think that there are not better options available. There is no guarantee that elections are not the ideal system, but they are imperfect, and it would be wise to be open to different ways of organizing our politics. (12:40-19:19)

One difference between today and the periods when elections took hold is that contemporary society is much more complex than in the past. As we deal with globally interconnected issues, it is much more difficult for our communities to really understand or see the effects of political decisions. In addition, elections tend to produce unrepresentative outcomes, with a small segment of economic and social elites occupying positions of political power. In an increasingly diverse society, this is a problem. Lottery selection would mean that groups that are frequently underrepresented, such as single parents or members of the working class, would have a voice in the legislature. (19:19-25:56)

The conversation turns to some of the logistics of how lotacracy would work in practice. Guerrero favors a set of single issue legislatures that would allow members to cultivate expertise. A question that remains is how executive oversight would work in a domain such as climate change where many important decisions must be made by administrative agencies. (25:56-28:47) Guerrero believes that agencies should be overseen by the legislature rather than an elected, or randomly selected, executive officer. (28:47-35:05) Broadly, agencies could operate as they do now, but with a different set of political leaders that they are accountable to. (35:05-52:31)

The attractiveness of the lotacracy idea turns in part on the people one envisions as being selected. Perhaps a randomly choses legislature would be a place where thoughtful, responsible, and diligent citizens deliberate on matters of public concern. Or, it could be cacophony of conflicting voices, with segregationists, QAnon supporters, or simply those who do not have the ability to understand the complex issues at hand vying for influence. Guerrero is optimistic and believes the lottery system cannot be much worse than the current system. Ultimately, he believes that bringing individuals from all backgrounds together to talk about political problems facilitates better discussion and engagement than what exists in our electoral system currently. (52:31-1:01-35)

Season 1, Episode 22

On this episode of Free Range, UVA Law Professor Mike Livermore speaks with Jed Purdy, Duke Law Professor and author of the forthcoming Two Cheers for Politics: Why Democracy is Flawed, Frightening – and Our Best Hope.

Purdy begins by discussing why current crises and loss of confidence in democratic institutions drew him to his current project. (0:43-4:37) People have begun to ask more of politics than in previous decades to address issues such as climate change and economic inequality, but our confidence in government institutions is still low. This presents a paradox: we want more from politics but we have growing reason to doubt that politics can deliver. (4:38-10:26)

Livermore and Purdy discuss how his project fits into the broad trend of theorizing about the meaning of democracy. (10:27-16:51) Purdy endorses civic virtues like open-mindedness but he sees a tendency to avoid the aspect of democracy that is decision-making. He is sympathetic to an earlier view that is more majoritarian, along the lines of the views of mid-20th century political scientist E. E. Schattschneider. (16:52-23:59) The two discuss the problem of power imbalances in any democratic form, and discuss Purdy’s objections to the lottocracy alternative. (24:00-33:55)
Purdy goes on to discuss the mismatch between the polices generated by current system of governance and the results that most people want. He is skeptical about the possibilities of technocratic government and more optimistic about democratic reforms that would lead policy to more closely line up with people’s existing preferences. (33:56-42:47)

The conversation covers two very consequential supreme court decisions: Dobbs v. Jackson Women’s Health Organization and West Virginia v. EPA. In both decisions, the Court argues that it is delivering policy questions from administrative and judicial institutions into more explicitly political bodies. Purdy suggests that the Court is not making this argument in good faith, given the existing limitation of our political institutions. (42:48-53:51)

The conversation ends with a discussion of the balance between leveraging existing institutions to effect change versus fighting for more fundamental reform. Purdy’s view is that it is important for serious people to work towards larger structural changes over the long term. He doesn’t think that the topic of constitutional reform should be left to the fringe, even if, in the near term, working within existing institutions will continue to be the primary means of improving public policy. (53:52-1:04:44)

Season 1, Episode 4

Transcription

On this episode of Free Range, Mike Livermore speaks with Willis Jenkins, the John Allen Hollingsworth Professor of Ethics and Chair of the University of Virginia’s Department of Religious Studies. In an enlightening conversation that flows from the nature of the humanities to the way in which concerns about access to water are thought about within the academy, Jenkins explains how his work brings together three distinct but connected concepts: religion, ethics, and the environment.

This wide-ranging conversation begins with both Livermore and Jenkins questioning the strange space the humanities occupies within academia, with both suggesting that perhaps the phrase is not fit for purpose (:43 – 4:52). Providing an example of just how interdisciplinary the humanities has become, Jenkins then discusses a project he is involved with as part of UVA’s Environmental Resilience Institute. The project examines the central problem of water security, and Jenkins explains what that means, why it is important, and how the group attempts to reconcile the different interests and values that weigh on society’s water demands (5:30 – 16:10).

The discussion then flows (pun intended!) into a conversation about the difficulties that scientists are confronted with when they are asked to provide objective answers to fundamentally subjective questions, whether the “trust the science” approach is the best option for a cohesive society, and whether democracies can survive climate change (16:25 – 27:24).

The focus then shifts to a different project Jenkins is working on, the Coastal Futures Conservatory, which combines the arts, the humanities, and scientific analysis in order to better understand the effects of climate change. Jenkins talks about a number of the Conservatory’s various projects, including the creation of sound installations in an abandoned coastal hotel on Virginia’s Eastern Shore, the incorporation of indigenous story-telling, and the conversion of data inputs into acoustic recordings. This, in turn, leads to questions about how societies will process the inevitable losses, of territory and of culture, that will occur as a result of climate change (27:30 – 43:10).

The final project Jenkins discusses is Sanctuary Lab, a multidisciplinary program that examines the effect climate change will have on sacred spaces, and how the cultural traditions associated with those spaces can be preserved in the future (43:40 – 53:40).

The conversation concludes with Jenkins briefly explaining the intersection of religion and the environment in the context of contemporary American politics (54:00 – 1:00:37).