law – 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 10

Transcription

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.

Season 2, Episode 7

Transcription

On this episode of Free Range, host Mike Livermore is joined by Paul Stephan, a comparative and international law expert at UVA Law and author of the new book, “The World Crisis and International Law: The Knowledge Economy and the Battle for the Future,” recently published by Cambridge University Press.

Stephan defines the concept of a knowledge economy as the increasing reliance on conceptual work rather than physical labor as a means of adding value to goods and services. He cites the example of container shipping and its impact on the distribution of goods around the world. Stephan argues that innovation is a driving force in the world economy and that international liberalism has emerged as a means of reducing barriers to talent and scalability, which are essential components of the knowledge economy (00:40-9:22).

Stephan discusses how global trade systems like the WTO and GATT were formed to promote international liberalism and reduce barriers to trade. He also discusses the “four freedoms” at the heart of the project of international liberalism, which are freedom of movement of goods, services, capital, and people. The expansion of Western liberal internationalism to other parts of the world after the end of the Cold War is also discussed. In the post-Soviet era, liberal internationalism and free trade institutions were expanded to other parts of the world, like Russia and China, in hopes they would follow (9:23-22:58).

Stephan discusses how the benefits of the knowledge economy are not spread evenly across the global economy with local distribution of winners and losers as well (22:58-28:32). In the 80s, Russia was a high human capital country but they chose a resource extraction pathway instead of disruptive innovation and production. For Stephan, China has a longer term perspective while Russia has pursued a strategy of using force in international relations and attempting to exploit divisions in competing polities (28:33-40:59).

In the context of climate change, Stephan emphasizes the importance of providing incentives for states to develop innovative technological solutions. He praises the transparency of the Paris Agreement and encourages the sharing of technological breakthroughs while still maintaining incentives to innovate (41:00-49:31).

Regarding the future of institutions like the WTO and the European Union, Stephan believes that these organizations can survive through adaptation. The conversation ends on a hopeful note, with the possibility of creating a world where incentives work to induce investment in carbon reduction, and where global cooperation is managed through an evolving but still robust international order.

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 1, Episode 30

Transcription

Host Mike Livermore concludes Season 1 of Free Range with a solo episode on the value of interdisciplinary engagement.
Livermore begins with the theory behind the podcast—speaking with guests with various perspectives and backgrounds relating to the environment and sustainability—and the tradeoffs between being a generalist rather than a specialist. (0:43 – 4:32) In this episode, he wants to explore the questions around interdisciplinary scholarship and engagement: Why do people do it? How is it useful? How is it done in a productive way? (4:37 – 11:20)

To begin, it is useful to understand why disciplines exist in the first place. A functional defense of disciplines is that they help us structure our knowledge production. (11:22 – 15:27) There is utility in modeling the world at different scales and reducing complexity of the models. Even though boundaries are somewhat arbitrary, they can help provide needed structure, and porous boundaries allow for productive crossover. Disciplinary boundaries also often seem to track something important about our world and how we understand it. (15:28 – 25:07). In the humanities, the boundaries are not as clearly world-tracking as they are within the sciences but may be more related to how we understand the world. (25:08 – 29:21) The value of disciplines is the creation of collections of people who share knowledge and research questions and methods, which promotes the progressive production of knowledge over time. (29:28 – 39:39)

Notwithstanding the value of disciplines, there is a place for interdisciplinary engagement. The value of such research is to combine various perspective. But while certain projects can be of interest to all fields involved, finding research that is rewarding for researches in many diverse fields is a big challenge in interdisciplinary collaboration. (39:40 – 56:23)

Livermore wraps up his thoughts on what makes interdisciplinary collaboration work, such as respect for one another’s disciplines, taking the time to understand what motivates them, and knowing the difference between normative and empirical questions. He concludes the episode with what motivates him personally, describing interest and appreciation in interdisciplinary engagement as an ‘aesthetic of knowledge.’ The overarching goal of Free Range is to create an opportunity to appreciate all of the interesting and difficult work being done across disciplines in the area of sustainability and the environment. (56:25 – 1:02:17)

Season 1, Episode 29

Transcription

On today’s episode of Free Range, Michael Livermore speaks with UVA Law colleague Rich Schragger a leading expert on local government, federalism, and urban policy and the author of City Power: Urban Governance in a Global Age.

Schragger begins the episode by discussing the idea of ‘city power,’ which is meant to challenge the usual narratives about local governments and cities. (0:42 – 2:41)

Livermore and Schragger turn to one view, of cities as selling a suite of policies and amenities. In his book, he discusses the mistake of misinterpreting sorting as a theory of economic growth. Schragger is skeptical of claims that a city has failed because of a decrease in population, which can have other causes. He argues that even in an economic downturn, cities need to provide good municipal services. (2:44 – 10:40)

They discuss theories of growth in cities, debating if growth is a policy independent processes. Schragger elaborates on the relationship between institutions and growth, saying that they will have a relationship but at what scale? He explains his attraction to Jane Jacobs’s ideas on why economic development happens in cities. (10:45 – 18:41)
Schragger explains two common views of cities: that they are products in markets or that they are byproducts of large-scale social forces. He prefers to think of a city as a process akin to an organic phenomenon. (18:42 – 28:07)

Schragger argues that we are still radically unsure what causes economic growth in a city. He emphasizes that cities should provide basic municipal services to their people as a matter of social justice, not as a matter of growth seeking. (28:10 – 31:47) He sees the lack of control over growth as in some ways liberating. Cities are free to implement policies such has a minimum living wage, and environmental regulations because ultimately these policies will not hurt the growth of the city. (31:48 – 35:17)

The discussion transitions into the distinctions between intercity and intracity competition. Schragger talks about how city population increases/decreases are attributed to the wrong factors. He uses the example of the urban resurgence in Charlottesville wrongly being attributed to the downtown mall. (35:20 – 43:13)

Livermore poses the question about the possibility of ever truly learning how policy affects cities. Schragger re-emphasizes that cities need to invest in services that improve the living of the people already there rather than attracting new people. Schragger argues that cities should act for justice, not growth. (43:20 – 53:01)

Livermore and Schragger discuss their views on redistribution, focusing on minimum wage. Schragger says the living minimum wage movement represents a proof of concept. He describes how large cities, such as Tokyo, New York City, London, have economic power that is used to leverage location advantage to do redistribution. He compares the power differences between city states and nation states, explaining cities’ locational leverage gives them more power to tax and redistribute than nations which flips the narrative of traditional federalism. (53:10 – 1:03:26)

Livermore closes the discussion by describing states as vestigial things in our constitutional system, asking Schragger his thoughts on the value of states. Schragger agrees that US states are in some ways a product of a flawed compromise and have lost their reason for being. He explains how one can be opposed to states but in favor of cities. He expresses that state-based federalism doesn’t work because the actual divide is not between states, but between cities and rural areas in those states. (1:03:31 – 1:11:40)

Season 1, Episode 27

Transcription

On this episode of Free Range, Mike Livermore interviews Gerald Torres, a professor at the Yale School of the Environment and Yale Law School and Director of the Yale Center for Environmental Justice. Torres explores the connections between environmental law and social justice from a scholarly and practical perspective.

The discussion begins with the Yale Center of Environmental Justice and its efforts to link together environmental justice initiatives across the university and community, including with local Native American tribes . (0:53 – 8:02) This raises the question of how to define work that relates to environmental justice. (8:06 – 14:11) This issue partly implicates whether environmental justice issues are a subset of a broader set of social justice claims or if they are distinctive from other areas. For Torres, one distinction is that the environment requires a broader and deeper perspective. (14:15 – 19:30) Another distinction is the focus of the EJ community on governmental decision making processes. (19:35 – 23:39)

The conversation turns to Bill Clinton’s Executive Order 12898 on environmental justice. Torres explains how the Executive Order attempted to create definitions of environmental justice communities and told agencies to incorporate environmental justice concerns in their basic processes. He compares the results of the executive order to the National Environmental Policy Act, which also had an emphasis on improving decision-making. (23:40 – 29:00) Torres emphasizes that the Executive Order responded to a broader social movement that grew out of social activism and communities mobilizing together. (29:01 – 30:57)

Livermore and Torres then discuss the relationship between environmental justice and political polarization over environmental issues. They reflect on the former bipartisan history of environmental protection and conservation and how opposition to environmentalism in the Republican party has grown increasingly intense in recent years. (31:00 – 39:00) Torres worries that the partisan nature of this debate will obscure the environmental successes that have been achieved over the last two generations. (39:01 – 43:48)

A current tension in environmental law is between local impacts of transitioning to clean energy and the need to decarbonize the economy. Torres explains the common complaint that procedural parts of environmental protection slow down decision-making, which increases the cost or permanently delays projects. But these statutes also protect the voice of disadvantaged groups. They discuss how net metering disputes in California have raised important justice issues as well. (43:50 – 54:00).

Torres reflects on the question of how well the current environmental movement has responded to EJ concerns. Torres, who is a trustee for Natural Resources Defense Council and is on the board for Earth Day, says both of these organizations have recognized the importance of integrating environmental justice concerns in the way they think about the environment. (54:02 – 57:45)

The conversation closes with Livermore asking Torres what makes him hopeful in light of the environmental challenges we face. Torres states that the broad recognition that we have to act on these issues, the social commitment in many places to environmental education, and his experience working with environmental justice communities have given him hope. (57:47 – 1:00:52)

Season 1, Episode 24

Transcription

On this episode of Free Range, Mike Livermore speaks with Michelle Wilde Anderson, a law professor at Stanford. Anderson is the author of The Fight To Save The Town: Reimagining Discarded America, published in June 2022.
Anderson begins by explaining the subtitle of the book, which draws attention to places that have both high poverty and few governmental resources, challenges that tend to be mutually reinforcing. Anderson discusses the reasons she chose the four places that the book focuses on: they’re exceptional places in terms of rich histories and good leadership, they contribute to a larger story when studied together because of their highlighted differences, and they represent the larger range of towns facing the problem of being poor and broke. (1:17 – 5:28)

Livermore asks Anderson, why she decided to focus on narratives rather than data and policy solutions. Anderson explains that the dominant stories that we tell about these places typically include violence, corruption, and hopelessness. These narratives are destructive to the political will to keep working on these hard problems. She wanted to acknowledge that the hardships are devastating and real, but there are also extraordinary people working on these problems and we can’t wish these places away. (5:29 – 9:40)

Anderson highlights a common way of thinking which she considers the “suitcases solution,” which encourages individuals to move towards growth and jobs to solve chronic poverty. Anderson argues that this has been a failed approach. Ideally, people would have options: to move on to opportunity, or to stay where they are without being trapped in intergenerational poverty.

A major challenge in many of these places is trust. This is especially destructive because poverty requires communities to come together. This is where the other part of the title of the book comes in, The Fight To Save The Town; it highlights how people can weave society back together and rebuild this basic trust.. (9:41 – 24:59)

A problem with the suitcase solution is that people end up unable to move because they lack resources or become traumatized before that becomes a possibility. The experiment of addressing deindustrialization through domestic migration has been tried for the past 40 years and doesn’t work. (25:00 – 34:16) Livermore and Anderson highlight the importance of a town building the foundation for people to participate in the labor market. (34:17 – 41:25)

Livermore asks Anderson about the redevelopment approach in contrast with investing in current residents. Anderson mentions that local public policy is often focused on downtown redevelopment. Anderson encourages pushing aside those kinds of interventions and investing in the people of the town. (41:26 – 49:58)

In regards to these different towns, Livermore asks: Are there broader lessons or general principles that can be implemented in a more systematic way? Anderson responds that she is not confident in a playbook for this resident-centered government or that it even exists. People who work on the frontline of the challenges rarely believe that it is possible to export their model to another town. Anderson emphasizes the importance of mutual aid, social repair, and social cooperation as a universal component of both progress and hope. (49:59 – 56:27)

To conclude, Livermore inquires about Anderson’s thoughts on the relationship between problems of the contemporary era and labor history in the United States. Anderson responds by noting that there are few periods in our history where we have had an explicit language to discuss poverty and a focus on empowerment, solidarity, and progress. The Labor Movement is one example of this language and leadership in writing. She claims that she is drawn to these individuals who discuss poverty as a source of strength and solidarity and who believe in the power of people. (56:28 – 1:00:47)

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)