On this episode of Free Range, host Mike Livermore is joined by Vanderbilt law professor Ganesh Sitaraman and University of Pennsylvania law professor Shelley Welton. Both guests are experts in regulatory policy and are co-authors of a new case book Networks, Platforms, and Utilities.
Case books serve as the academic bedrock of law school classes. They are collections of seminal cases that facilitate the understanding of a specific field of law. Networks, Platforms, and Utilities collects primary source material that cover infrastructure areas such as transportation, communications, energy, finance, and technology. The subject of regulated industries has fallen away as a law school class in recent decades, but the industries did not disappear, nor did an important role for law and regulation. Networks, Platforms, and Utilities is intended to revitalize this area of teaching and scholarship (0:45-23:36).
One key distinction that helps structure the conversation on regulation is the difference between economic and social regulation. Economic regulation essentially overseas an industrial area, generally with the purpose of managing a natural monopoly. Social regulation addresses a wider range of political purposes, including addressing externalities such as pollution. In both types of regulation, questions of governance, democratic accountability, and social justice are present. And, of course, these two categories sometimes overlap (23:37-31:51). Net metering is an examples of a case of economic regulation that is also intertwined with broader social issues, particularly climate change, given the effects of that policy on renewable energy adoption (31:52-39:17).
Many of the cases covered in the book interact with antitrust law. In utilities-related cases, introducing competition as a remedy is not an appropriate solution for the marketplace. In situations creating competitive markets is not feasible, there is a second set of tools that can help achieve social goals in regulated, non-competitive markets. In these cases, the democratic process helps determine what goals the regulator should try to achieve (39:18-54:48).
Livermore, Sitaraman, and Welton discuss how to deliberate over these issues. One key question is whether it is possible to have robust participation when many of the questions regulators face are highly technical. Welton ends by discussion a hopeful example of powerful public participation is a series of conversations held by the New York Public Service Commission with low income ratepayers across New York. In her view, these individuals, who engaged in a particular governance process, were able to tell their stories and eventually push New York to adopt a different method of pricing electricity (54:49-1:04:11). Overall, Sitaraman and Welton are optimistic that the current political movement is shifting in favor of greater economic regulation, so that the law examined in Networks, Platforms and Utilities will only grow in coming years.
Tag Archives: land
Season 1, Episode 20
On this episode of Free Range, Mike Livermore speaks with Moira O’Neill, a professor of Urban and Environmental Planning at the University of Virginia who also has a joint appointment at UVA Law. Her work covers land use, climate change, equity, and resilience. A specific area of her research is land use law and its relationship to housing affordability, integration, and environmental impacts in California.
O’Neill discusses the motivation for her recent study on the regulatory choices that restrict the development of different kinds of housing. (1:39 – 4:17). O’Neill describes the biggest highlight of the study: there’s incredible variability in how jurisdictions apply both state environmental review and their own law. (4:18 – 6:16) There is also a vast amount of local discretion. Most approval processes are discretionary rather than through a faster ministerial pathway that is contemplated by state law. (6:19 – 13:24)
O’Neill points out that environmental impact reports were quite uncommon in most of the observations because there is a large amount of environmental review happening at the planning level. Theoretically, this in-depth environmental review will explore the potential of environmental impacts associated with the jurisdiction’s developmental desires to facilitate their respective policy goals. (13:25 – 17:50) Livermore and O’Neill discuss the exemptions which the state has created for CEQA (California Environmental Quality Act) for classes of development that the political process has determined are important for facilitating climate policy. (17:51 – 21:45)
O’Neill explains the risks associated with longer time frames in the development process. The lengthened process in San Francisco invites important questions about the role of politics. (21:46 – 25:18) O’Neill mentions a San Francisco law that allows neighbors to request a discretionary public hearing for any new development. This provision can be triggered by a neighbor or an interested party, creating uncertainties for developers, especially of affordable housing. (24:19 – 33:10)
Livermore asks: What is the nature of the politics that are in play here? O’Neill responds that there are certain processes that seem to open the door for political disputes or opposition to development. (33:11 – 37:34) Livermore and O’Neill discuss whether this involvement of politics is necessarily an intrusion, or an appropriate deliberative process. O’Neill attempts to contextualize the answer in terms of California’s law on how land use operates, answering that the challenge is finding the right balance. She also mentions the risk of NIMBYism. (37:35 – 48:49)
O’Neill discusses some of the differences between jurisdictions in California, providing an example in which participants in interviews that worked in both San Francisco and Redwood City described both processes as complex, but Redwood city as more predictable and straightforward. (48:50 – 54:21)
Livermore asks O’Neill a bigger picture question: How much of this issue is a technical problem with technical fixes? How much of this is reflecting underlying political and economic realities about conflict? O’Neill answers that there is no question in her mind that there are underlying factors that manifest in how the law is applied. However, while there’s not a simple legislative or regulatory fix, that doesn’t mean that we couldn’t do more on the regulatory and technical sides. (54:22 – 1:01:26)
Livermore and O’Neill end the episode by covering the concept of good politics. O’Neill highlights that she thinks there can be a disconnect between what people think is happening in a jurisdiction and what is actually happening, which is problematic for policy making. O’Neill concludes that good information is valuable for good politics and good deliberation. (1:01:27 – 1:04:46)
Season 1, Episode 8
On this episode of Free Range, Mike Livermore speaks with Karen Bradshaw, a Professor of Law and the Mary Sigler Research Fellow at Arizona State University’s Sandra Day O’Connor College of Law. Bradshaw’s work examines the intersection of environmental law and property law. Her most recent book, Wildlife as Property Owners: A New Conception of Animal Rights, contends that property rights can be a useful tool in the protection of endangered wildlife.
Bradshaw begins by providing a summation of the central argument of her book, and explaining how the conclusions she comes to are, in fact, a continuation of trends that have been gaining legitimacy in both property rights law and trusts and estates law. She also describes how many of the ideas discussed in the book were well-established in non-Western legal systems and property regimes, such as those of many pre-colonial indigenous communities. This would constitute an expansion of the original understanding of environmental law as it was conceived in the 1970s (:55 – 10:04).
The conversation then focuses on what steps the United States government, which owns nearly a third of the country’s land area, could take to ensure that wildlife interests are adequately protected against future land takings. Bradshaw describes the process through which the status quo could be changed, so that property can, in fact, be owned by animals and managed on their behalf. Bradshaw argues that the understanding of who (or what) has a right to own property is in constant evolution, and much of the publicly-owned land in the United States is already being managed for the benefit of animals. This part of the discussion incorporates a variety of legal concepts, including conservation easements and the Takings Clause of the Fifth Amendment (10:13 – 30:14).
This leads to questions about how the legal system would define ownership, and what sorts of natural entities would be entitled to ownership rights. Bradshaw claims that the example offered by approaches to animal rights within the context of the high seas — areas of the ocean outside national boundaries — might be indicative of the path to take within national boundaries. Bradshaw also talks about her own experience with this issue, as she is in the process of titling her own property to incorporate the animals that live on it (30:20 – 37:12).
Using her firsthand experience as a reference point, Bradshaw compares the animal-ownership regime with more traditional means of protecting land for wildlife, such as donation to a conservation trust, emphasizing the importance of a move away from anthropocentric understandings of land ownership. This leads to a more in-depth discussion of the legal responsibilities and practical realities of managing animal-owned land (37:40 – 55:40).
The conversation concludes with a broad discussion about how we approach animals generally, touching on such ideas as whether blue jays have an easement to the trees in someone’s backyard and the extent to which prairie dogs are able to speak, rather than simply communicate, with one another (55:50 – 1:06:53).
Season 1, Episode 1
On this episode of Free Range, Mike Livermore speaks with Dr. Deborah Lawrence, a Professor of Environmental Sciences at the University of Virginia, about her research on land use and the connection between deforestation and climate change. In this discussion, Lawrence provides an in-depth explanation of the role forests play in affecting the global climate and then discusses how climate scientists use mathematical modeling to project the future of climate change.
Professor Lawrence begins by describing how she developed her interdisciplinary approach to studying land use, which she calls “Food, Fuels and Forests” (2:30 – 5:30). This approach recognizes that the surface of the earth is a finite good, so the decision to use a part of it for one thing necessarily means it is not being used for another. Lawrence and Livermore then discuss the current state of carbon capture technology (5:55 – 13:25).
Professor Lawrence explains that one of the fundamental flaws in most climate change models is the fact that almost every model relies on carbon capture and sequestration technology that is either unproven (direct air capture) or prohibitively expensive (like BECCS – bioenergy with carbon capture and storage). The conversation then shifts to a discussion of the importance of forests in relation to climate change on both a global and local scale, with Professor Lawrence offering a detailed explanation of the process through which forests cool the planet (15:00 – 24:15). Lawrence then explains the role of modeling in climate change science, generally, and in her work specifically (24:30 – 44:35).
Finally, Professor Lawrence provides insight into her research on land use, how land use decisions fit within the broader considerations of climate change science, and the benefits of approaching land use questions from a multidisciplinary perspective (45:00 – 59:45).
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