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)
Tag Archives: law
Season 1, Episode 18
On this episode of Free Range, Mike Livermore speaks with Jonathan Adler, a law professor at Case Western who writes on environmental law, federalism, and regulation. In 2020, Brookings Institution Press published Adler’s edited Marijuana Federalism: Uncle Sam and Mary Jane.
Livermore and Adler begin their discussion on the topic of federalism and environmental law. Generally, Adler highlights sees the federal government as best focused on transboundary issues while states focus on issues with more localized impacts (00:49 – 02:50). Adler lists several benefits of states as venues for environmental policymaking, including variation in geography, economics, and industry as well as differences in values (02:50 – 04:35). He also highlights the value of experimentation in this regard (04:35 – 05:30). Alder also notes the distinction between decentralization as a policy matter and decentralization as a legal matter (05:30 – 06:56).
Livermore notes the large role played by the federal government under existing law for locally oriented pollution. Adler offers some thoughts on the origins of this situation, mentioning the lack of jurisdictional thought when statues were passed as well as the deserved skepticism towards state and local governments as a result of the Civil Rights Movement (06:56 – 10:37). Adler hopes that today’s states are different from those in the 60s and 70s (10:37 – 10:52). Adler offers some suggestions for policy reform (12:50 – 16:35) and the two discuss potential political barriers (16:35 – 21:47).
Livermore introduces a discussion about injustice and public choice failure at the state level. He mentions our renewed emphasis on environmental justice issues, and Adler argues that while states can fail, so can the federal government (21:47 – 32:40).
Adler and Livermore turn to experimentation and state variation (32:40 – 42:01). Livermore notes his view that the Brandeisian idea of “laboratories of democracy” is inapt; that a better way to view this process is as innovation. Adler agrees with the concept of innovation and discovery, emphasizing the discovery side. It’s not experimentation in the sense that it is controlled, it is rather a discovery and learning process as a result of variation and observation (42:01 – 48:06).
Livermore requests Adler’s thoughts on federalism versus localism and decentralization more broadly. Adler responds with the idea that different communities have different priorities; there is no one size fits all. He mentions that when local communities are given autonomy and control, they often discover and innovate in ways that have important environmental benefits. In terms of legality, the extent to which this is viable varies from state to state (48:06 – 53:36).
Livermore and Adler return to the earlier, more legal discussion around litigation over climate damages. Livermore explains a recent Second Circuit decision which led to a preemption-like result, asking Adler to discuss the stakes of the difference between federal common law and state common law, displacement versus preemption, and his thoughts on the Second Circuit decision. Adler argues that, although from a policy perspective, climate change is better suited to national rather than state or local solutions, from a legal perspective, the Second Circuit’s holding that these suits were preempted was unjustified (53:36 – 1:02:34).
The final question the two discuss is the intersection between environmental federalism and political polarization. Adler argues that principled federalism can help depolarize because it can lessen the stakes. Unnecessary centralization magnifies polarization. Adler is careful not to generalize, recognizing that there is no one answer that will solve everything. However, he states that if we can allow centralization and decentralization where they are most fit, we might be a few steps closer to arriving at agreement on environmental policy (1:02:34 – 1:07:52).
Season 1, Episode 13
On this episode of Free Range, Mike Livermore speaks with Jennifer Cole and Michael Vandenbergh. Dr. Cole is a postdoctoral scholar in social psychology at the Vanderbilt Climate Change Research Network, and Professor Vandenbergh is the David Daniels Allen Distinguished Chair of Law at the Vanderbilt University Law School. Their work examines the political polarization of climate change and covid policies.
To start off, Livermore asks his guests how they stay positive when studying something as divisive as the politicization of climate change. Vandenbergh explains the concept of “solution aversion,” which happens when individuals are aware of a solution but are wary of the means to achieve it. Cole then describes how this problem can be avoided by leveraging group polarization to shift perspectives and uses this example to talk about the field of social psychology, generally, and what her work focuses on, specifically (:40 – 5:16).
This leads to a discussion about the state of polarization in both climate issues and covid issues. Climate change, Vandenbergh says, has become so polarized that it can essentially serve as substitute for all other political views, across the social spectrum. Cole then defines the concept of “pluralistic ignorance,” or the gap that exists between what a group actually believes and what others think that groups believe. In the case of climate change, people think Republicans as a group do not believe in climate change, but research demonstrates that a substantial number of Republicans agree with the scientific consensus that human-caused climate change is occurring. The guests then explain how societal reactions to covid have paralleled those to climate change. Cole found that rather than treating covid as a shared threat, people responded to it with the same level of political polarization that they have to climate change (5:18 – 14:02).
This leads to an extended discussion about the disconnect between party bases and party elites. Vandenbergh suggests some tactics that party elites can engage in to attempt to shift the position of a party base, such as appealing to primary voters or appearing on popular media platforms. This part of the conversation then segues into an explanation of how party leaders can control messaging before an issue becomes broadly accepted amongst the party’s base (14:05 – 29:38).
Moving away from a focus on party elites, Livermore asks what kind of strategy would be optimal to change perceptions amongst a party’s base. Vandenbergh emphasizes how stressing private sector action can be quite helpful, particularly in the case of something like climate change, while Cole says the research suggests discussing issues more often can actually lead to shifts in mindset. (29:46 – 36:49)
The conversation concludes with Livermore posing the hypothetical of a conservation group that, in all other issues, is conservatively-oriented, and asking why it is difficult to envision such an organization existing in our current climate. Vandenbergh counters that there are some Republicans engaged in the climate change space, while also arguing that the real focus should be on those organizations that are complying with their ESG commitments, and using that as a tool to urge non-compliant organizations to fall in line. Cole suggests that climate change-focused organizations may be able to use conservative terminology and appeal to conservative morality to appeal to conservatives, even if the organization more broadly does not align itself with conservative ideology (36:53 – 43:07).
Season 1, Episode 10
On this episode of Free Range, Mike Livermore speaks with Arden Rowell, a Professor of Law at the University of Illinois College of Law. Rowell’s work focuses on environmental law, human behavior, and the incorporation of a multidisciplinary approach to the study of environmental law. Her new book, The Psychology of Environmental Law, co-written with Kenworthey Bilz, was recently published by NYU Press.
Rowell begins by explaining why, despite the interdisciplinary nature of environmental law, psychology has not, to this point, had the effect on environmental law that it could and should have. She goes on to explain how and why environmental law and policy, in particular, need to be considered from a psychological perspective. This relates to the specific kinds of injuries that are suffered in the environmental law context, with Rowell explaining that environmental injuries are diffuse, complex and difficult to process, and often non-human character. This combination of factors means that it can be difficult for people to attach emotion and value to environmental injuries (1:15 – 8:02). Delving into more detail of these factors, Rowell first addresses the non-human character of environmental injury, with a focus on how this interacts with economic theories of preferences. She also weighs in on whether the public’s reflective preferences should drive environmental reform, and more broader sociological factors that can influence environmental policy (8:20 – 23:27).
Rowell then speaks about the psychology of how people engage with various environmental issues, such as pollution and the natural/man-made dichotomy. To illustrate her point, Rowell relates a couple of anecdotes from her book, including one about the Mount Tabor reservoir in Portland, Oregon (23:55 – 32:28).
The conversation then segues into an in-depth discussion of particulate matter air pollution, wildfire management, and the changing public perception of wildfires generally. Rowell explains that this fits into a broader discussion regarding the shift in public preference from the artificial to the natural, and how risk perception is changing in response to this shift (32:35 – 43:39). Rowell then explains how this information can be used to shape policy in order to better address actual, rather than perceived, risks. She also discusses the role moral disengagement plays in shaping environmental policy and people’s view of climate change. (43:52 – 53:32).
The conversation concludes with a consideration of the effect of in-group/out-group psychology on our understanding of environmental harm, how this relates to rising nationalism across the globe, and whether a nationalistic environmental policy is sustainable long-term (53:37 – 1:01:00).
Professor Michael Livermore is the Edward F. Howrey Professor of Law at the University of Virginia School of Law. He is also the Director of the Program in Law, Communities and the Environment (PLACE), an interdisciplinary program based at UVA Law that examines the intersection of legal, environmental, and social concerns.
Season 1, Episode 9
On this episode of Free Range, Mike Livermore speaks with Shi-Ling Hsu, the D’Alemberte Professor of Law and Associate Dean for Environmental Programs at the Florida State University College of Law. He is also the author of the book Capitalism and the Environment: A Proposal to Save the Environment, which was published in December 2021 by Cambridge University Press.
Professor Hsu begins by discussing what motivated him to pursue a PhD in Agricultural and Resource Economics, having already practiced for several years as a lawyer, and how his experience as a graduate student with a law degree differed from his colleagues (1:00 – 2:58). Hsu then summarizes the basic argument of his new book: that the environmental problems the world currently faces are not the fault of capitalism but, rather, are the result of society’s decisions. This leads to a discussion about the relative advantages of capitalism versus centralized planning when it comes to dealing with environmental problems. As part of this analysis, Hsu comments on the shift away from market-based mechanisms that has characterized recent environmental law (3:00 – 11:30).
This discussion raises the question of what role increasingly stark economic inequality has played in creating discontentment towards capitalism, to the point of blaming capitalism for things that are not, according to Hsu, capitalism’s fault. This leads to an in-depth conversation about the benefits and drawbacks of using capitalism as a means of addressing environmental issues, the intersection of economic inequality and the political undermining of capitalism, and why Hsu believes socialism is not the answer some might think it is (11:35 – 24:45).
Professor Livermore then asks Professor Hsu about the libertarian argument against taxation, both in terms of environmental law and more generally. Professor Hsu explains that some libertarian arguments about reducing the size of government may be misguided, drawing on his experience of working on environmental projects with the Canadian government. Hsu also explains why he believes taxes are more beneficial than subsidies, with Professor Livermore pointing out that the unpopularity of taxes when compared with subsidies means that taxes are difficult to use in environmental contexts. Hsu suggests that a compromise might be reached in which nascent renewable energy technologies are subsidized, leading to a political economy in which taxation is more palatable, and then proposes other ways to reduce the apprehension towards taxation (25:00 – 42:05).
Professor Livermore questions whether a carbon tax will ever be widely accepted, which leads Professor Hsu to suggest that the United States has simply not yet reached the point of crisis that may be necessary to shift the emphasis from subsidization to taxation, which leads to a discussion of the Green New Deal (42:07 – 48:33) Professor Livermore compares carbon taxation with the various “glide-path” policies that were used to reduce cigarette consumption (48:35 – 50:50).
The conversation ends with a return to Professor Hsu’s book, and what effect he believes the work will have on the current debate surrounding environmental economics, and who the argument in his book is appealing to (50:53 – 59:19).
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 7
Today on Free Range, Mike Livermore speaks with his colleague Jonathan Cannon, who retired from UVA Law in May 2021 after over two decades of teaching at the law school. Prior to joining UVA Law, Cannon served as general counsel to the EPA, and his 1998 memo, which has come to be known as “the Cannon memo,” was influential in opening a path for EPA to regulate greenhouse gas emissions. He is currently writing a book about the significance of “place.”
Cannon begins by explaining what the concept of place means to him, and how it has shaped both his professional and personal experiences throughout his life (1:12 – 6:00). The conversation then examines American environmental policy generally, how environmental concerns are framed in the public sphere, and what influences shape how individuals experience their environment (6:05 – 12:20).
Shifting to more theoretical ideas, Cannon and Livermore discuss normative approaches to the environment and how conflicting views of place might be reconciled. This part of the conversation also examines the role ethics and aesthetics play in establishing normative views of the environment (12:35 – 26:25). Moving to one of the main talking points within the environmental movement, Cannon examines the tension that exists between the desire to protect landscapes and the destruction of landscapes that inevitably occurs as a result of human development (26:30 – 32:16).
This leads to a more philosophical consideration of the function of sensory experiences in determining how individuals relate to “places,” with both Cannon and Livermore describing the ways their individual personal experiences, as children and adults, informed their understanding of what makes “place” significant (32:23 – 47:12).
To conclude the conversation, Cannon and Livermore discuss the problematic history of the ideal of natural beauty in American culture. This contested history has taken on increased significance for Cannon personally as, after moving into the house where he currently lives, he and his wife uncovered a ledger of people who had previously been enslaved on the property. Cannon talks about how this discovery has altered his relationship to the place, and what steps he has taken in its aftermath (47:20 – 58:40). Finally, Cannon explains how shared experiences of place may encourage consensus at the local level (59:02 – 1:02:47).
Season 1, Episode 5
On this episode of Free Range with Mike Livermore, Mike speaks with Boston University School of Law professor Madison Condon about the interaction between corporate governance and environmental concerns. Condon has written extensively on how corporations are changing their approach to the environment in the face of climate change issues and the rise of ESG investing, which incorporates Environmental, Social, and Governance considerations into larger investment strategies.
The conversation starts off with a discussion of the influence of massive investment funds like BlackRock, Vanguard, and State Street in the world of corporate governance. These funds are so large that they are now capable of exerting considerable influence over corporate decisions. Condon introduces the concept of Universal Owner theory in the corporate world: institutional investors have such diversified portfolios that it is now in their best interests to care about the environment (1:04 – 7:18).
This leads into an analysis of activist investment fund Engine No. 1 which, in 2021, engaged in a successful proxy battle to gain seats on ExxonMobil’s board of directors. Condon also touches on broader questions of whether the strategy employed by Engine No. 1 to win the proxy battle opens the door for potential antitrust violations, and the benefits and drawbacks of shareholder primacy. Expanding on these questions, Livermore and Condon discuss a hypothetical situation in which an institutional investment fund acts to benefit itself at the expense of a company’s continued existence, and what this behavior might implicate more generally (8:40 – 21:50).
Condon then talks about one of the potential outcomes of activist investment — a rise in shareholder derivative suits alleging that boards have breached their fiduciary duties. This part of the conversation hits on various aspects of corporate law, including the scope of the business judgment rule and the significance of Delaware in America’s corporate legal regime (23:43 – 31:45).
The conversation then shifts to a discussion of the divestment movement as a strategy to influence corporate behavior in the environmental context, the way corporations have engaged in greenwashing in response to the divestment movement’s demands, and the rise of ESG in corporate decision-making (31:51 – 48:52).
The conversation concludes with Condon clarifying her position regarding just how influential investment funds can actually be in affecting action to slow climate change (50:21 – 55:30).
Season 1, Episode 3
On this episode of Free Range, Mike Livermore speaks with sovereign debt experts Lee Buchheit and Mitu Gulati. Buchheit is a retired partner at international law firm Cleary Gottlieb Steen & Hamilton, whose practice centers on international debt restructuring and project finance. He has worked on more than two dozen sovereign debt restructuring deals, including leading the team that advised the Greek government during its 2012 debt crisis. Mitu Gulati is the John V. Ray Research Professor of Law at the University of Virginia School of Law. In addition to his academic work, he is the host of Clauses and Controversies, a podcast which examines the intersection of international finance and contract law.
To start off, Buchheit and Gulati provide a bit of background into their careers and how the field of sovereign debt restructuring re-emerged in the 1980s, fifty years after it first appeared in the wake of the Great Depression. Buchheit then provides a detailed explanation of what, exactly, sovereign debt is, how it functions on the international stage, and its advantages and drawbacks, and then describes the kinds of circumstances that can cause nations to seek to restructure their debts (1:15 – 21:22).
Continuing on from this, Buchheit explains the sovereign debt restructuring process, like the one Greece went through in the early 2010s, when the situation was so dire that some even suggested Greece sell the Acropolis (22:10 – 27:40). The conversation then shifts to analyzing broader questions about the current structure of global debt, and the potential sovereign debt crisis that looms over the global economy (28:52 – 41:00).
The podcast concludes with a long discussion about a recent debt restructuring deal Buchheit worked on for the government of Belize, which incorporated certain environmental conservation goals as conditions of the restructuring. The specifics of the deal lead Gulati and Livermore to raise questions about whether sovereign debt contributes to economic disparities between the Global North and Global South (42:00 – 1:20:18).
Season 1, Episode 2
On today’s episode, Mike Livermore speaks with Assistant Professor Camilo Sánchez, the Director of the University of Virginia School of Law’s International Human Rights Clinic. Their conversation covers everything from Latin American history to the intersection of constitutional law and international law. These threads come together in the Guapinol Case, one of the clinic’s major projects. In that matter, Professor Sánchez and his students collaborate with international organizations to advocate on behalf of a group of eight illegally-detained environmental defenders in Honduras.
The conversation begins with Professor Sánchez talking about his background and what sparked his interest in international law (00:40 – 2:40).
Professor Sánchez explains the importance of international law in the Latin American context, and describes how domestic politics and international law interact with each other in the region (2:45 – 10:35). The discussion examines the intersection of human rights and environmental law issues by looking at the work being done by UVA Law’s International Human Rights Clinic in the Guapinol Case (10:45 – 29:00).
Livermore and Sánchez discuss environmental rights in constitutional and international law. Professor Sánchez describes and summarizes three distinct approaches to this idea: philosophical, legal, and practical, and then explains how rights litigation has played a role in establishing norms that allow for distinct commercial and social interests to coexist (29:53 – 49:45).
The conversation concludes with an affirmation of the importance of cooperation between legislatures and courts to ensure development that is sustainable and equitable (50:35 – 1:04:30).
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