Environmental Policy

Class 15: Markets and Causal Stories CofC Fall 2010 Environmental Policy

Env Policy Making:Judiciary Part II: Chapter 3

Role of Judiciary • What is the role of the Judiciary? • "As dreadful as the Bush administration has been with respect to clean air and forests and all these environmental issues," she says, "the courts have been really our savior. And have time and time again in the last years [it has] stepped in.” NPR Article. • “By the end of his 2nd term, W. Bush was fully immersed in the concept of environmental policy-making in the courts. Enviro advocates were waging an all-out attack in the cts” to challenge his enviro policies.

Sources of Enviro Law • Constitutions (federal and state) • Statutes (fed, state and local) • Administrative regs • Treaties (signed by President and ratified by the Senate) • Executive Orders (proclamations issued by presidents or govs) • Appellate court decisions

Influences on Enviro Court Decisions • State of Law itself: precedents and interpreting statutes • Court’s Environment • Public opinion • Litigants and interest groups • Congressional rulings on scope of jurisdiction • Presidential appointments • Judge’s Values (Liberal, Conservative, Moderate)  Cannot be overemphasized b/c Federal Judges are appointed for life • Influences between Judges: They can influence each other

Judicial Interpretation • Main Purpose: Courts interpret laws; however, they do indirectly make law as well • Judicial Review of environmental Agencies • How an agency interprets an enviro law is within court’s purview • Agency has more leniency from cts when interpreting its own admin law • See Chevron v. NDRC  ”Chevron deference” • Even if agency correctly understood the law, and reasonably applied it to facts, courts can overturn agency actions if determined to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”

How Courts Shape Enviro Policy • 1. Standing to Sue (who can litigate): usually subject to interpretation, and by controlling who has authority to seek environmental redress, courts shape policy itself • 2. Ripeness (ready for review): an actual controversy must exist and more than just “anticipated”cts look at fitness of issue itself and hardship on parties without redress • 3. Standards of Review: Under what conditions will experts/agencies authority be subject to interpretation and what standards will polluters be held? • 4. Interpretation (stare decisis): judicial interpretation of law/reg becomes enviro policy today and in the future • 5. Choice of Remedies: What remedies used (e.g. fines, probation, modifications, cease and desist, etc)

Standing • Who can sue on behalf of the environment • Must demonstrate an “injury in fact”  a “concrete and particularized, actual or imminent invasion of a legally protected interest.”

Ripeness: Ohio Forestry v. Sierra Club • Facts: Forestry Service developed a plan for Wayne National Forest (in Ohio) that would allow below-cost timber sales and clear-cutting. Sierra Club et al. sued. • Holding: Case was not “ripe” b/c it “concerned abstract disagreements over administrative policies”. • Here, the Sup Ct did not want to “second-guess” thousands of technical decisions of gov’t scientists and experts—that is, there was not an “arbitrary or capricious” government action. • Outcome for Policy: In most cases, this means that concrete damage is necessary before a court will act.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council • Decided in July 2009 (essentially a Bush Admin “Win”) • Permitted Coeur Alaska to dump mine waste or “tailings” (land fill with contaminants in it) into a Lake • Enviro groups brought suit citing CWA, Coeur argued that Army Corps of Engineers had authority to grant permission • Ct, in a 6-3 decision, agreed with Coeur. • What constituted a “fill material” was changed in 2002 by the Bush Administration to allow “contaminants” to be included legally within the CWA mandate as “fill” and then disposed of… • Ginsburg Dissent, argued that essentially turning lake into a “waste site” and worried about this is as a loophole.

Massachusetts v. US EPA (2007) • In 2003 (Bush), the EPA made two determinations: • 1. the EPA lacked authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gases (GHGs) • 2. even if the EPA did have such authority, it would not use it. • Petitioners were States: MA, CA, NY, etc, cities: Balt, DC, & NYC, and Enviro Groups; Respondents were EPA, States: TX, OH, AS, etc. and Auto/Truck Groups • Holding: • Petitioners had standing: Only 1 plaintiff needs to meet standing, MA did b/c of future SLR • the CAA does give the US EPA authority to regulate tailpipe emissions of GHGs, and • its current rationale for not regulating was found to be inadequate, and the agency must articulate a reasonable basis in order to avoid regulation. Sup Ct determined that to NOT regulate GHGs would be “arbitrary, capricious and not in accordance with the law” • In addition, the majority report commented that "greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.” • Dissent (Scalia): No standing, but regardless, EPA should not be made to regulate, they have the right to “defer” and should be based on “Chevron Deference”

Chevron v. NDRC (1984) • Established “Chevron Deference” • Legal test for determining whether to grant deference to a government agency's interpretation of its own statutory mandate • Holding: Courts must defer to administrative agency interpretations of the authority granted to them by Congress: • (1) where the grant of authority was ambiguous, and • (2) where the interpretation was reasonable or permissible.

Vids • UCLA LAW: Mass v. EPA (5m) • EPA Response (Stephen Johnson) in Congress Hearing (8m)

Future Trends • 1. Anti-Environmentalism of Court System: Despite cases like MA v. EPA the Sup Ct has been “reliably anti-enviro”. • Many scholars attribute this to “states’ rights” judges • 2. Enviro Justice is increasingly difficult because of standing  many states have tightened standing requirements and fed laws without specific “citizen-suit provisions” are prone to rejection. • Cts have rejected many private rts of action thru Civ Rights. • 3. Increased use of Environmental Conflict Resolution • Decreased costs • More public participation • Litigation is time-consuming • Courts often fail to resolve the underlying dispute (only legal or procedural issues)

Enviro Policy Making: Markets and Causal Stories

Lindblom’s ‘Market as Prison’ • Main Point? • Relationship between market and democracy • He examines the way the market works in democratic societies. Many kinds of market reform automatically trigger punishments in the form of unemployment or a sluggish economy. And thus the market represses (but does not completely stop) political or policy change. • Lindblom argues that we must recognize that the market is an inducement system. You cannot compel people to invest in industry, employ more workers, reduce their prices, etc. They must be induced. • On the one hand, argues Lindblom, no democratic nation state has ever arisen anywhere in the world except in conjunction with a market system. And yet, because the market imprisons the policy-making process, no market society can achieve a fully developed democracy.

Vids • PBS, Logging in the Adirondacks • Corps: American Electric Co., Keeping the Lights on Always • Experts: “clean coal” • Environmental Interest Groups: • Sierra Club: “Popping the Myths of Clean Coal” • Media: “A Future for Clean Coal”

Stone’s “Causal Stories…” • Article is about? • “how situations come come to be seen as caused by human actions and amenable to human intervention”; that is, why “difficulties” arise to a higher levels of political “problem”? • A precursor to “agenda setting” • Main Point? • How this transformation is accomplished (difficulties  problem) is through “causal stories” • Conditions, difficulties, or issues do not have inherent properties that make them more or less likely to be seen as problems or to be expanded. • Causal Story: Political actors deliberately compose and portray stories that describe harms and difficulties, attribute them to actions of other individuals or organizations, and thereby claim the right to invoke government power to stop the harm. • Political actors construct these stories strategically to gain support for their side/position.

Causal Story Narratives • Causal Stories have empiric and moral dimensions • Empiric: they purport to demonstrate the mechanism by which one set of people brings about harms to another set • Normative: blame one set of people for causing the suffering of others. • On both levels, causal stories move situations intellectually from the realm of fate to the realm of human agency. • This intellectual step is the key trigger for moving a condition onto the "systemic agenda issues up for discussion in a polity. • Causal stories continue to be important in the formulation and selection of alternative policy responses, because they locate the burdens of reform differently • Different sides act as if they are trying to find the "true" cause, but they are always struggling to influence which idea is selected to guide policy. • Political conflicts (over causal stories) are fights about control and assignment of responsibility.

Strategies • Pushing responsibility on to someone else • Claim another is responsible for intentionally causing prob • Second option: use mechanical or inadvertent causation • Many fall into the camp of what appears accidental is actually caused by human will (Silent Spring & DDT). • Risk: has become a key strategic weapon for pushing a problem out of the realm of accident into the realm of purpose • the probabilistic association of harmful outcomes with human actions is widely accepted as a demonstration of a cause-and-effect relationship  if predictable then responsible for consequences. • Increasingly courts are holding corps liable for ‘calculated risks’ • Civil Rights: showing that a seemingly neutral rule was pretext for discrimination or that rule was administered in discrim fashion (statistical analysis has aided). • While one side is attempting to show responsibility, the other seeks to push it away from intent toward the realm of nature or to show that the problem was intentionally caused by someone else  complex cause is sometimes used to avoid blame

Conclusions “Causal Stories” 1. Causal argument is at the heart of political problem definition. Problem definition is centrally concerned with attributing bad conditions to human behavior instead of accidents, fate, or nature 2. Problem definition is the active manipulation of images of conditions by competing political actors. Conditions come to be defined as problems through the strategic portrayal of causal stories. 3. Actors seeking to define a problem attempt to push the interpretation of a bad condition out of the realm of accident and into the realm of human control. 4. Arguments based on probabilistic cause are increasingly successful 5. Competition over causal theories are bounded by law and science—social institutions that serve as arbiters 6. In the world of policy there is “always choice about which causal factors in the lineage to address, and different choices locate the responsibility and burden of reform differently.” (p. 297). There’s a range of places to locate control and impose sanctions. 7. They implicitly call for a redistribution of power by demanding that causal agents cease producing harm and by suggesting the types of people who should be entrusted with reform. And they can restructure political alliances by creating common categories of victims

Conclusion “Making EP” • US political system “suffers from serious institutional deficiencies when weighed against the imperatives of contemporary environmental policy needs.” • However, optimism for good enviro policy resides particularly at the “state and local levels of government where policy gridlock is less a problem than it is in Washington . Yet formulating and adopting effective environmental policies that can be broadly supported is not easy at any level of government.” • Markets, through incentives, are a powerful and effective way to guide action to induce action that protects the environment. Yet, this same market inhibits democracy (Lindblom) • Issue framing is a critical (if not most) stage of the policy process. There are two fundamental variables in this process: • 1) Values, which inform decision-making through alt preferences, and • 2) causal stories that are told in framing issues for public consumption

Environmental Policy