U.S. Government | Environmental Law Institute

Merchants of Mythology: A Century of the Anti-Regulatory Movement

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Author

Lisa Benjamin - Lewis & Clark Law School

Lewis & Clark Law School

Current Issue

November-December 2023

Issue

Recent decisions have marked a new era of Supreme Court jurisprudence in administrative law, particularly in the environmental field. Both the West Virginia v. EPA and Sackett v. EPA cases constrained the agency’s discretion to reduce greenhouse gas emissions and protect wetlands, respectively, in a time of overlapping climate and biodiversity crises. The first few pages of the Loper Bright v. Raimondo brief, which requests the Chevron doctrine be overturned, refers to agency regulation to protect fisheries as “aggressive” and “crushing.”

But where did this intense dislike, and distrust, of federal agencies begin? Naomi Oreskes and Erik Conway, writing in The Big Myth: How American Business Taught Us to Loathe Government and Love the Free Market, provide a masterful history of this important topic.

Oreskes is a professor of the history of science at Harvard University, and Conway is a historian of science and technology at the California Institute of Technology. One of their previous, and very famous, books, The Merchants of Doubt, explored how the fossil fuel industry spread disinformation regarding climate science. The authors discovered that intelligent, educated people, prominent scientists in fact, were denying the reality of climate change, as well as the harms of tobacco. The motivation of these scientists was ideological—they were all strong proponents of market fundamentalism. Their fear was that government regulation of capitalism for public health or climate protection would be the slippery slope to socialism or communism. Instead they argued for the “magic of the marketplace.”

Oreskes and Conway’s new book is meticulously researched, and masterfully laid out. And the results are shocking. The peddling of the myth of the magical marketplace was executed almost with no underlying supportive facts or data, yet had (and continues to have) a disastrous effect on public health, the economy, and the environment. The role of scholars and the legal bar in perpetuating this myth has been long-lasting and pervasive. It began with a small network of individuals who knew each other, supported each other, including financially, and promoted a singular anti-government view. Academia, the church, the judiciary, and popular culture were all infused by this myth.

Oreskes and Conway do not eschew capitalism or the many benefits of the market in allocating resources through price signals. But they do illustrate the significant problems that flow from unrestrained capitalism. Simply put, they believe that markets are good for many things, but they are not, in fact, magic. Instead, governance and government regulation are in fact both necessary and beneficial to the public and to capitalists themselves.

In the United States, the roots of the myth stretch back to a battle waged between the government and business around the legality of child labor. In 1924, the House of Representatives proposed a constitutional amendment to allow Congress the power to regulate and limit child labor. American industry promptly organized against it, astroturfing through groups with names such as the Committee for the Protection of Child, Family, School, and the Church, and spreading false information about the proposed amendment.

A leading organization in the fight to retain child labor was the National Association of Manufacturers. Founded in 1895, NAM originally fought for government regulation that was protectionist, in the forms of tariffs, but later became known for its opposition to unionization, federal taxation, the role of government in American business, and most recently to climate requirements or carbon disclosure rules.

A century ago, Oreskes and Conway write, “In its opposition to child labor restrictions, NAM followed a play book of rhetorical fallacies that market fundamentalism would lean on for decades to come, including slippery-slope arguments, ad hominem and straw man attacks, half-truths, misrepresentations, denial of documented evidence, and outright lies.” These tactics are sadly familiar to anyone involved in the climate change crisis. Today, NAM still sides with the fossil fuel industry and opposes any regulation or liability for climate protection.

Early in this effort, NAM, together with the chair of and the president of Sun Oil, engaged in a series of propaganda-related activities. They provided free content to daily newspapers, schools, business commentators, factory workers, and radio show hosts. The messages were simple: America is the best country on Earth; American business generates unprecedented prosperity; the interests of business and labor are the same; unions are not necessary and mislead workers; and the real threat to workers’ interest is taxation. These efforts were called by NAM “integration propaganda”—free content designed to be inserted directly into news stories as well as into business reports, statistical reports, graphics, opinion pieces, and even cartoons—with no identification of their source.

One of the The Big Myth’s most depressing—and shocking—revelations is the deep belief among many opponents of regulation of the inherent inequality of people. These views were influenced by a Columbia academic named Nicholas Butler, who believed that “the corner-stone of democracy is natural inequality. . . . Liberty is far more precious than equality, and the two are mutually destructive.” This resistance to regulation was entrenched by monied interests in opposition to the New Deal.

“Incensed” by the formation of the National Labor Relations Board, executives at DuPont and General Motors founded the American Liberty League. They focused on the prioritization of property rights, but only for some. Their views were not only undemocratic, but also anti-Black. In 1948, Pierre du Pont wrote that “it was a mistake to give Negroes the vote that is, if we are to have good government.” Milton Friedman at least acknowledged that discrimination is wrong but dismissed it as inconsequential—at a time when Jim Crow segregation flourished. Regulation was only supposed to benefit propertied, White men. Any other regulation was “anti-American.”

Another surprising revelation is the historic, and persistent, role that electric utilities played in propagating this myth. In trying to re-brand their own failure to provide electricity to rural customers, they organized one of the largest propaganda campaigns in U.S. history through their trade organization, the National Electric Light Association. NELA regrouped as the Edison Electric Institute, which is still active today. It disseminated free educational materials that contained disinformation, and at times outright lies, painting municipal utilities in a consistently bad light and promoting private ownership. The utilities attempted to control the entire American educational system in its own economic interest. A six-year Federal Trade Commission investigation of the industry’s conduct led historian Ronald Kline to conclude NELA’s campaign was “underhanded” and “unethical.”

The authors chart the rise of this market fundamentalism framework, an effort that blossomed in the 1950s. It clothed unrestrained markets in the language of freedom, but as the authors point out, only freedom to promote the economic prosperity of its proponents. And the movement used decidedly “unfree” tactics to disseminate its message, like private espionage, censorship of academic texts they did not like, dissemination of false information, couching propaganda as truth, and extensive lobbying to consolidate the myth.

They also relied on either heavily redacted, or heavily edited, versions of some of the academic thinkers upon which this myth was based. Excerpts from The Wealth of Nations deleted mention by Adam Smith of the utility of government regulation. In addition, Freidrich Hayek’s The Road to Serfdom (which became the bible of market fundamentalism) in its full version readily accepts the utility of government interventions in areas like deforestation, farming, and environmental protection, as long as that intervention is done equitably. But this work was “transformed” into an antigovernment polemic by deleting all of these references to beneficial regulation.

Propaganda was also distributed by the Hollywood Right. For example, Ayn Rand circulated a pamphlet for the Motion Picture Alliance’s Screen Guide for Americans which included messages like “Don’t Smear Wealth,” “Don’t Deify the Common Man,” and “Don’t Glorify the Collective.” Actor Ronald Reagan became involved in these pro-capitalist, individualist media messages through his long engagement by the General Electric Theater, which pitched not just the usefulness of electricity, but of capitalism itself. This job would lay the foundation for Reagan’s political ideology, and public popularity, paving the way for his presidency.

The Big Myth provides an excellent account of Reagan’s rise to power on the basis of this myth, his subsequent deregulatory efforts, and how these measures differed from predecessor Jimmy Carter’s deregulatory efforts aimed at a few strangled industries. It was Ronald Reagan who was the first president to weaponize agencies in deregulatory efforts that were contrary to their statutory charters. These efforts continue today, despite demonstrated and dramatic failures of deregulated markets that included the savings and loan fiasco during Reagan’s presidency and the financial crash during the last year of George W. Bush’s administration.

For many decades, the conjoining of the magic of the marketplace with messages that unrestrained capitalism equals individual freedom has been a successful strategy, and that continues so today. But the freedom these businesses and trade associations have been advocating for is not, in fact, based on democratic values of equality, but on the desire to be free to make profits. The demonization and defanging of government agencies was, and continues to be, one of the sad and dangerous products of this myth.

Lisa Benjamin is an associate professor at Lewis & Clark Law School.

Lisa Benjamin on the Merchants of Mythology

The Sustainable Development Goals and the United States

Read more about The Sustainable Development Goals and the United States

Author

Tony Pipa - Brookings Institution

Brookings Institution

Current Issue

July-August 2023

Issue

In September 2015, in stirring remarks at the United Nations (U.N.), Pres. Barack Obama committed the United States to achieve by 2030 the Sustainable Development Goals (SDGs), an interrelated set of goals that comprise the core of the 2030 Agenda for Sustainable Development agreed to by all 193 U.N. Member States.1 Granted, much of his speech focused on the importance the United States places on supporting development internationally, emphasizing its commitments to stop the “grinding poverty that so many experience every day around the world.” Yet he also embraced the universality of the SDGs, conceding the implications of growing inequality in the United States and stressing that “all of our nations have work to do.”2 Even if most of his insights were weighted toward global issues, the message was still clear: the SDGs also apply to us.

However, since the countdown to 2030 started in January 2016, multiple events have complicated and compromised this commitment. The 2016 election of President Donald Trump and his “America First” foreign policy threw multilateral solutions into disfavor. Without disavowing the goals completely, the Administration basically ignored them as having any meaning for the United States, especially in domestic policy. As the Biden Administration seeks to engineer an economic transformation during the recovery from the COVID-19 pandemic, it has doubled down on far-reaching federal leadership but has yet to express interest in, or align its objectives to, the SDGs.

The SDGs have a low level of awareness by the general public, and also suffer from a perception in some policy circles that they represent a feel-good global agenda with limited ability to impact U.S. problems and history. At the same time, many U.S. corporate leaders, investors, mayors, university and foundation presidents, and advocates have embraced the SDGs as a blueprint for action on social issues. Yet, at least within the federal government, the SDGs are still receiving limited attention as a policy framework with relevance and value for shaping and driving its response to U.S. domestic challenges.

Adopting the common language of the SDGs, and transparently measuring U.S. progress toward the Agenda 2030 targets, could provide the basis for mobilizing wide-ranging partnerships and attracting additional policy attention and allies for the Administration’s domestic objectives. It could also help rebuild U.S. credibility on the global stage as the Biden Administration reenters and seeks to reestablish U.S. engagement within key international alliances. This overview explores the stance of the United States regarding the SDGs and its domestic policy priorities, and provides a set of policy recommendations for making the SDGs meaningful for U.S. domestic progress.

The United States and the Creation of the SDGs: A Brief History

It took the United States some time to warm to the idea of the SDGs and especially their universal application, but eventually it actively engaged and sought to be a constructive force in the negotiations. Despite President Obama’s commitment in September 2015, the United States has yet to fully implement this commitment.

The administration of George W. Bush had mostly ignored the Millennium Development Goals (MDGs), a set of commitments launched in 2000 that preceded and set the stage for the SDGs. Those goals were directed at poverty and related issues in developing countries, setting benchmarks for reaching a basic level of human and social well-being by 2015.3 The MDGs were seen by donor and recipient countries alike as a blueprint for foreign aid—how it should be directed and spent, and how its results should be measured—but even so, they still proved too doctrinaire for the Administration. Thus the United States, while not opposing their aspirations, remained mostly on the sidelines through the first eight years of the MDGs’ 15-year tenure.

By the time of Obama’s presidency, however, the characteristics that had come to define U.S. international development assistance aligned quite well with the approach of the MDGs. For example, the President’s Emergency Plan for AIDS Relief and the President’s Malaria Initiative, both signature Bush initiatives, set precise quantitative targets, emphasized rigorous data collection and measurement, and stayed narrowly focused on one particular issue.4

The Obama Administration used the same playbook in launching its own major global initiative on food insecurity, Feed the Future.5 Given that all these U.S. priorities were reflected in the MDGs, and that both the United States and the U.N. emphasized quantitative, time-bound targets, the formal commitment by the Obama Administration in 2009 to have the United States explicitly support the MDGs was natural—and noncontroversial.

While not all the MDGs were achieved by their end date of 2015, the world did indeed meet several ambitious targets—a 50% reduction in extreme poverty among them—and made significant progress on several others. After 2009, the newfound U.S. seriousness about the MDGs served as an accelerator on several targets. For example, once the United States homed in on reducing preventable child mortality as a particular priority, it led a charge to analyze where the global burden was heaviest and organized a call to action co-led with India and Ethiopia, in collaboration with the U.N. Children’s Fund (UNICEF).6 It changed its own strategy, focusing its efforts in 24 priority countries that together accounted for more than 70% of child and maternal deaths.7 Later estimates would suggest that these efforts resulted in more than 500,000 extra lives being saved over two years.8

Amid this backdrop the United States entered into discussions at the U.N. to define the successor set of goals, sensing an opportunity to continue to elevate quantitative targets, regular and transparent measurement of outcomes, and time-bound end dates as powerful tools to mobilize coordinated global action on its own global development priorities.

Preliminary processes at the U.N. added new considerations and requirements that required a shift in the U.S. mindset. In the 1992 U.N. Conference on Environment and Development in Rio de Janeiro, also known as the Earth Summit, nations had unanimously agreed for the first time to work for and achieve sustainable development, a framework for reconciling economic and social development with environmental protection. Their basic objective was to foster societal well-being for present and future generations in all countries. Many Member States made a push out of the Rio+20 Conference in 2012 to develop goals that more intentionally and robustly integrated issues of environmental sustainability. Thus momentum began to include goals related to issues that were under consideration, such as climate change, biodiversity, oceans, and sustainable production and consumption (and these were ultimately added). The impetus to elevate environmental issues created momentum to add other considerations that were absent from the MDGs, including a stronger focus on economic issues, inequality, peace, and justice.

The United States raised some concerns regarding the impetus to widen the agenda. With the addition of new issues related to sustainability and inequality, the goals overall, and in particular those related to global poverty and other dimensions of basic human development, risked becoming broad and imprecise. From the U.S. perspective, this could dilute their mobilizing capability and overall impact.

The sequence of U.N. processes also created a larger political challenge. With negotiations on the new global development goals set to achieve resolution just months before the much-anticipated Conference of Parties on climate change in Paris in December 2015, the United States was determined that nothing in the SDG process or negotiations would jeopardize its diplomacy and ambitions for Paris, which took precedence for the president and the Administration.

Yet, as the process evolved, it became clear that a consensus was emerging that the new goals should define a broader and more ambitious set of goals that represented a level of well-being to which any society aspires—and that none had fully yet achieved. Thus many Member States began advocating for these to be considered “universal” goals, to be applied and achieved by developed and developing countries alike.

Similar to many other high-income countries, the orientation of the United States during its engagement in these negotiations was decidedly international, led by the State Department in conjunction with the National Security Council (NSC). The bulk of the primary inputs for U.S. positions came from evidence collected by the U.S. Agency for International Development (USAID) and other U.S. government global development programs, reflecting lessons and experience from U.S. investments overseas. The primary objective of the United States was to ensure the goals would be useful tools to mobilize collective action on its global development priorities.

Once it became clear that a commitment to universal application had gained momentum among major coalitions within the U.N., the NSC engaged the leadership at the White House Domestic Policy Council (DPC). The DPC undertook an analysis to ensure that the SDG targets were in line with domestic aspirations and did not represent any reputational risk to the United States, based on current baselines and benchmarks. It also identified signature domestic initiatives that could benefit from additional public attention. The DPC, however, never became a full partner in the interagency process that brought the different parts of the U.S. government to consensus on positions.

After several interagency discussions, key leadership at the White House came around to the idea of universality. It helped that the vehicle for adoption of the 2030 Agenda and the SDGs would be a U.N. General Assembly resolution. By definition, such a resolution is a voluntary commitment that “reflects the views of Member States [and] provides policy recommendations,” and does not have the binding force of a treaty.9

In addition, making the SDGs universal created a precedent that would enable the climate agreement at Paris to work the same way: that is, structuring the climate agreement so that, for the first time, it would entail commitments from all Parties—including developing countries—to undertake nationally determined contributions. (Previous climate agreements had put binding commitments on developed countries only.)10 For U.S. policymakers, this was a positive development and a good set up for the U.S. position for Paris. In addition, they questioned the degree to which progress in developed countries would receive much attention during the official follow-up and review processes for the SDGs, anticipating continued focus on developing countries and giving the United States some perceived leeway to keep its primary focus on international investments and global priorities.11

Ultimately, however, the idea of breaking down the silos between developed and developing countries, and framing the 2030 Agenda through the lens of sustainable development, a process already underway in every country no matter its level of income and economic power, proved both compelling and reflective of the Obama Administration’s orientation. The General Assembly reached agreement on a resolution laying out the 2030 Agenda and the SDGs in August 2015, and the United States joined the consensus. President Obama’s speech a month later at the U.N. during the initial SDG Summit cemented that commitment on behalf of the United States.

That consensus consists of 17 goals, 169 targets, and more than 230 indicators to measure progress on social, economic, and environmental benchmarks to be achieved by each country by 2030. The framework thus requires countries to pursue an evidence-based discipline of development that remains sensitive to the links among these interconnected objectives. Importantly, the goals recognize that “sustainable development” is a continuum of progress that no country has fully attained, making the goals applicable to all countries regardless of income level.

The consensus also sets out an architecture of follow-up and review to enable learning and accountability. Each year during July, the Economic and Social Council of the U.N. convenes development ministers during the High-Level Political Forum (HLPF), where countries voluntarily report on their progress on the SDGs, submitting a voluntary national review (VNR). Every four years, heads of state will participate in a summit under the auspices of the U.N. General Assembly, and a team of scientists will publish a Global Sustainable Development Report to take the full measure of global progress and mobilize action to address key gaps and opportunities.

As President Obama committed the United States to this consensus, not only did his remarks reinforce the U.S. acceptance of the universality of the SDGs, but the United States ultimately chose to highlight a key domestic policy during the launch celebration. The major side event in which senior U.S. government officials participated showcased a presidential memorandum that zeroed in on access to justice in the United States (a target of Goal 16) and the formal establishment of a Legal Aid Interagency Roundtable as a presidential initiative to expand civil legal assistance for those who could not pay for it. Rather than focus on its international investments, the choice to elevate domestic policy interventions to advance progress on Goal 16 at home demonstrated that the United States saw the SDGs as applying to itself.

U.S. Implementation of the SDGs: 2016-2020

The commitment by President Obama in 2015 remains the high mark of U.S. involvement in the SDGs. Subsequent implementation by the U.S. government was short-lived and spotty at best.

To be fair, the basic internal structures of the U.S. government, which in modern times have not changed dramatically between presidential administrations, do not lend themselves to easy coordination between the national security and foreign policy apparatus and the machinery of domestic and economic policy. There is no real tradition of collaboration or partnership between the NSC and the DPC, for example. With the SDGs perceived internally as primarily a global development framework—the purview of the U.S. government’s foreign policy leadership—the U.S. domestic agencies never fully embraced the SDGs as drivers of policy relevant to their objectives.

Despite the clear commitment to the SDGs and their universality by President Obama, neither during the negotiations nor during his tenure in 2016 did the Administration ever convene Cabinet secretaries or deputies of domestic departments to provide guidance as to their roles and responsibilities for achieving the goals. Thus, even before the 2016 presidential election and subsequent transition to the Trump Administration, the goals never received high-level political attention among the domestic policy leadership despite their many touchpoints across the Administration’s domestic policy priorities and resources.

In 2016, the chief statistician within the Office of Management and Budget (OMB) did become actively involved in the deliberations to define the indicators that measure progress on the SDGs. Through a process guided by the U.N. Statistical Commission, Member States adopted a resolution in July 2017 to ensure countries would be providing measurements that are comparable across countries and can be aggregated to assess progress on the global targets.12 Once the U.N. set up the official reporting architecture for countries to submit their data, OMB took the step of setting up an online reporting portal for U.S. reporting.13 However, the data have not been updated regularly since 2016.

Surely this was influenced by the advent of the Trump Administration. Under its “America First” foreign policy, the United States had a strong aversion to agreements taken in multilateral settings. While the Trump Administration did not publicly reject the U.S. commitment to the SDGs or officially “pull out,” it generally ignored them as having any relevance to U.S. domestic or foreign policies. There were several instances in which the goals made brief or submerged appearances on the foreign policy side—when the Administration agreed to benign language in the 2017 G20 communiqué, for example, or initially published a crosswalk between indicators used for USAID’s new Journey to Self-Reliance policy framework and the SDGs in a footnoted appendix.14

For the most part, however, the goals were entirely absent from the U.S. government lexicon unless forced to acknowledge them in multilateral resolutions or discussions. By the beginning of 2021 and the end of the Trump Administration, the United States was the only member of the G7, the G20, and the Organisation for Economic Co-operation and Development (OECD) not to have presented a VNR at the U.N. to report its progress on the SDGs.

The lack of leadership from the U.S. government does not mean American leadership on the SDGs has been absent. Some U.S. cities and states have been at the forefront worldwide of applying the SDGs locally. New York City pioneered the first voluntary local review (VLR), a local adaptation of the VNRs, and has played a key role in expanding this movement globally by signing up other cities through its VLR declaration.15 Los Angeles and Hawaii were among the first U.S. jurisdictions to launch online dashboards to measure their progress.16

American businesses, universities, philanthropies, and nonprofits have also been at the cutting edge. Carnegie Mellon University, for example, published the first ever voluntary university review worldwide.17 U.S. multinational corporations from Verizon to Walmart to Citibank have put the SDGs at the center of their environmental, social, and governance (ESG) efforts and even their corporate strategies, and private investors such as BlackRock and PIMCO are using them to assess societal impacts of their investments. The SDGs have attracted significant attention as a vetted, applicable framework as the corporate community increasingly sees its role as improving stakeholder—as opposed to shareholder—value. Thus, while the national government has looked the other way, other parts of American society have proclaimed the importance of the goals and have taken action based on their imperatives.

The United States and the SDGs Post-2021: “Build Back Better”

With the advent of the Biden Administration comes a pledge that the U.S. government will focus on building back better as it recovers from the health, economic, and social impacts of the COVID-19 pandemic. Indeed, the “Build Back Better” slogan of the Biden-Harris Administration’s policy agenda echoes the very vocabulary that has been used by U.N. Secretary General António Guterres since the beginning of the pandemic—and in which he elevates the SDGs as the policy framework for achieving this.18

The Biden-Harris Administration has signaled a willingness to incorporate the SDGs into its international development priorities and strategies. Remarks by Samantha Power, former ambassador to the U.N. and current USAID administrator, at the U.N.’s HLPF in July 2021 positioned the Administration’s agenda within the framework of the SDGs.19 Yet the Administration has yet to focus on the SDGs as relevant to its domestic agenda. This despite the case that much of the Administration’s approach and framing are a good fit for the framework of the goals, both substantively and rhetorically. The four pillars of the Build Back Better agenda—stopping the COVID-19 pandemic, generating a transformative economic recovery, addressing systemic racism, and taking ambitious action on climate change—are all reflected in SDG targets and metrics.

Take, for example, the president’s Executive Order on tackling the climate crisis at home and abroad.20 It establishes a high-level, interagency National Climate Task Force chaired by the national climate advisor. Among its tasks, in addition to reducing climate pollution and enabling better resilience to climate change impacts, are to “protect public health; conserve our lands, waters, oceans, and biodiversity; deliver environmental justice; and spur well-paying union jobs and economic growth.”21 This is a wide-ranging mandate that aligns with the breadth and interdependence of the 2030 Agenda and would benefit from its integrated framework and discipline of time-bound, quantitative benchmarks.

The disproportionate impacts of COVID-19 and the racial reckoning in the United States provoked by the murder of George Floyd by a police officer galvanized attention on the intertwined legacies of inequality and racism. Addressing these systemic impacts of this racism is another key pillar of the Administration’s domestic policy, highlighted by a stand-alone Executive Order on racial equity (as well as key provisions on climate justice within the climate Executive Order).22 The key considerations for addressing the root of these challenges—public and equitable access to health security, equitable economic mobility, justice equally applied—are embedded in Goals 3 (Good Health and Well-being), 10 (Reduced Inequalities), and 16 (Peace, Justice, and Strong Institutions). The SDGs, in other words, provide a starting point for this agenda.

Given the ambitions of its domestic vision in advancing a set of interrelated social, economic, and environmental priorities, the SDGs are both politically interesting and policy relevant for the Administration. But taking advantage will require policy commitments and direction. I recommend a three-point plan below.

1. Establish Whole-of-Government Leadership

In the Biden-Harris Administration, the boundaries between the foreign policy interests and domestic agenda of the United States are becoming increasingly interconnected, especially as they relate to transnational issues. Jake Sullivan, the national security advisor under President Biden, has played a central role in encouraging U.S. diplomats and national security strategists to define the success of the country’s foreign policy in terms of its impact on the middle class. The SDGs, which commit the United States to achieving the same objectives in-country that they are promoting and encouraging countries to achieve overseas, offer another entry point for drawing the connection between the domestic and international.

Recommendations include:

The president should establish a Cabinet-level committee, co-chaired by the national security advisor and the head of the DPC, that brings together U.S. foreign and domestic policy leadership to regularly assess U.S. progress on meeting the SDGs by 2030. This committee should focus high-level attention on U.S. policy interventions and resources to address key gaps and opportunities in achieving the SDGs.

The president should direct the SDG Committee to submit a U.S. VNR at the U.N. by the soonest possible HLPF.

The SDG Committee should also identify key opportunities for action by federal departments to advance progress on the SDGs. At a minimum, these should include:

Federal agencies should map to SDG targets and metrics the Administration’s U.S. domestic climate action plan to achieve a 50% reduction in greenhouse gas emissions by 2030, to position its climate agenda within the framework of the SDGs.

Federal agencies should map to SDG targets and metrics the key components of the American Rescue Plan Act,23 the Infrastructure Investment and Jobs Act,24 and subsequent legislation and executive actions to advance a “Build Back Better” policy agenda, to assess the comprehensive effects of these policies on social, economic, and environmental progress in the United States.

USAID, the Department of State, and other agencies should ensure that global development investments adopt the SDGs as a major policy platform for guiding and measuring the impact of U.S. bilateral and multilateral aid.

USAID, the Department of State, and other agencies should leverage opportunities on the global development calendar to advance U.S. foreign policy interests by elevating U.S. domestic commitments and innovations.

This set of recommendations aims to align and coordinate the leadership of the U.S. government on both the international and domestic aspects of the 2030 Agenda, and to maximize the benefits for U.S. interests at home and abroad. Doing so requires high-level attention and political leadership, the kind that only members of the president’s Cabinet can provide. In lieu of a national development strategy, success at home will depend upon departments prioritizing and measuring their performance against relevant targets.

A whole-of-government approach will enable the United States to break down its own internal silos, to the benefit of its larger agenda. For example, the Biden Administration made it a key foreign policy priority to host a Summit of Democracies early in its tenure, to counteract the global rise in authoritarianism and populism and demonstrate how democracies deliver for their citizens. Responsiveness to citizens and democratic governance are core to Goal 16, giving the United States a ready-made platform—given the violence experienced at the U.S. Capitol on January 6, 2021, and the differing perceptions as it relates to the integrity of the 2020 presidential election—to acknowledge the work needing to be done at home while promoting such an alliance abroad. This is just one case of how the SDGs provide an opportunity for the United States to project global leadership by integrating its domestic commitments, challenges, and innovations into its approach. The United States will find it much easier to reestablish its leadership internationally when it leads by its own example.

2. Adopt the Data-Driven Discipline of the SDGs to Transparently Measure Impact of Domestic Policy

The time-bound benchmarks of the SDGs force policymakers to analyze the extent to which “business as usual” will bring the United States to achieving the SDGs and identify gaps and opportunities that will require more focused action. Specific recommendations are below.

Recommendation: The interagency SDG Committee should disaggregate SDG reporting by race and sex for SDG indicators of inequality, economic mobility, justice, education and jobs, and other relevant targets.

By asking policymakers to prioritize and reach the most vulnerable first, the SDGs offer a clarion call to “Leave No One Behind,” an agenda that has taken on increased relevance during the COVID-19 pandemic, which exposed fault lines of inequality among different demographic groups. This imperative provides additional political momentum for the U.S. government to redress the impact on communities and groups that have been marginalized, mistreated, and discriminated against based on their color or sex. Viewing and measuring the targets of the SDGs through a racial and gender equity lens, and disaggregating the data by race and sex, can help pinpoint where the history in the United States of systemic marginalization continues to result in inequitable outcomes—and puts it into a larger global context, important both for U.S. and global progress on these issues. Measuring disaggregated progress toward 2030 will offer a clear, evidence-based appraisal of the U.S. government’s success in closing these gaps.25

Recommendation: Congress should introduce legislation to mandate submission of a U.S. VNR every three years.

A first VNR will establish a U.S. baseline and clarify where the greatest opportunities and challenges exist for the United States. Legislation mandating subsequent VNRs will ensure a sustained focus across election cycles and signal the importance of being accountable to the time-bound, evidence-based nature of the targets. Congress should also appropriate funds in the legislation to ensure that the VNR will occur and continue in spite of electoral cycles or budget pressures.

Recommendation: The president should direct the executive branch departments and agencies responsible for domestic policy to integrate relevant SDG targets and metrics into the plans required by President Biden’s Executive Orders Advancing Racial Equity and Support for Underserved Communities Through the Federal Government and Tackling the Climate Crisis at Home and Abroad.

These Executive Orders provide the basis for two of the key pillars of the Administration’s Build Back Better agenda, and agencies are already following a set of clear instructions to meet their mandate. Putting these in the common language and metrics of the relevant SDGs will make their actions more accessible to a global audience, make it easy to highlight U.S. innovations and policy successes on challenging social issues, and act as an important first step in “building the muscle” for the U.S. government to utilize the accountability and evidence base of the SDGs to assess progress and mobilize additional partnerships and actions.

3. Leverage “All-of-Society” Leadership on the SDGs

While developing a VNR, the SDG Committee should convene a set of regional summits within the United States as part of its recommitment to the SDGs to offer the opportunity for local leaders and multiple sectors to showcase their innovations, best practices, and commitments; offer data and assessments of progress at the local level; identify policy areas and resources where the federal government could help accelerate their progress; and develop new models of collaboration and governance to accelerate progress.

The SDG Committee should also develop a national 2030 platform that brings together state and local governments, corporations, investors, universities, philanthropies, civil society, and citizens to showcase their SDG commitments and actions, share tools and best practices, develop partnerships, and receive support for new ideas. This platform could encourage widespread adoption of innovations that have proven successful at a small scale. It would also highlight to government officials and the public the degree to which leading private-sector actors have adopted the SDGs, perhaps lending credibility to the metrics.

Based on this encouragement, and policy support and resources from the federal government, governors, state legislators, mayors, and city councils should adopt the metrics and time-bound, outcome-based targets of the SDGs to prioritize their policy objectives, improve transparency, and mobilize partners and stakeholders to contribute to progress. As a first step, local governments should align their strategies to the SDGs and undertake a VLR of progress, using the SDG metrics to set a baseline and assess gaps and opportunities for progress.

Similarly, corporate leaders, businesses, and investors should frame their social and environmental impacts within the framework and metrics of the SDGs, adopting its common language to enable greater comparability and set a standard that can be collectively understood. The business and investor community can use the SDGs to inform the next generation of universal ESG measures and disclosures; these must be rigorous and transparent, and eventually be a part of corporate material reporting.

The leadership that is already being displayed by multiple sectors of U.S. society on the SDGs offers an opportunity to the federal government simultaneously to accelerate progress at home while renewing American global “soft power” through a multistakeholder and networked approach. Rather than remain insular, concerned only about its own policies and resources in relation to the SDGs, the federal government should exercise leadership and act as a conductor to enhance coordination and collaboration among businesses, universities, philanthropies, nonprofits, and the city and state governments that have taken leading actions, by creating a platform for cultivating new partnerships and mutually reinforcing disparate efforts.

Conclusion

The United States may have been slow to warm to the idea of universality and accept the mandate that the SDGs should apply to its own social, economic, and environmental challenges. It has also been slow to make the SDGs meaningful in any real policy sense, having stayed mostly on the sidelines since the SDGs launched in January 2016. Yet the United States still has the chance to become a major force, even consequential, in driving progress both globally and at home in this decade of action. Embracing that the goals have meaning for its domestic agenda, and acting upon it, is a critical first step. ELI PRESS

1. G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development, U.N. Doc. A/RES/70/1 (Oct. 21, 2015), https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.

2. Press Release, The White House, Remarks by the President on Sustainable Development Goals (Sept. 27, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/09/27/remarks-president-sustainable-development-goals.

3. G.A. Res. 55/2, United Nations Millennium Declaration, U.N. Doc. A/55/L.2 (Sept. 18, 2000), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/559/51/PDF/N0055951.pdf?OpenElement.

4. Fact Sheet, The White House, The President’s Emergency Plan for AIDS Relief (Jan. 29, 2003), https://georgewbush-whitehouse.archives.gov/news/releases/2003/01/20030129-1.html; U.S. Agency for International Development (USAID), U.S. President’s Malaria Initiative, https://www.usaid.gov/global-health/fact-sheets/malaria-announcement-february-2016 (last updated Feb. 22, 2016).

5. Fact Sheet, The White House, President Obama’s Commitment to Global Development (July 20, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/07/20/fact-sheet-president-obamas-commitment-global-development.

6. G.A. Res. 55/2, supra note 3.

7. USAID, Acting on the Call 2016: Ending Preventable Child and Maternal Deaths: A Focus on Equity (2016), https://www.usaid.gov/sites/default/files/documents/1864/AotCfacthsheet_online_print.pdf.

8. Ambassador Power: Remarks at Negotiations on the Post-2015 Development Agenda, U.S. Mission Int’l Orgs. Geneva, Aug. 2, 2015, https://geneva.usmission.gov/2015/08/02/ambassador-power-remarks-at-negotiations-on-the-post-2015-development-agenda/.

9. Nicole Ruder et al., The GA Handbook: A Practical Guide to the United Nations General Assembly (2017),https://research.un.org/ld.php?content_id=36397685.

10. Lindsay Maizland, Global Climate Agreements: Successes and Failures, Council on Foreign Rels., Nov. 17, 2021, https://www.cfr.org/backgrounder/paris-global-climate-change-agreements.

11. G.A. Res. 71/313, Work of the Statistical Commission Pertaining to the 2030 Agenda for Sustainable Development, U.N. Doc. A/71/L.75 (July 6, 2017), https://ggim.un.org/documents/A_RES_71_313.pdf.

12. Id.

13. U.S. National Statistics for the U.N. Sustainable Development Goals,https://sdg.data.gov (last visited June 24, 2022).

14. The initial online publication of the indicators used for USAID’s Journey to Self-Reliance referenced how the U.S. government’s indicators related to relevant SDG indicators. That publication was revised and updated and, when published, removed the mention of the SDG indicators. “Transformation at the U.S. Agency for International Development,” published in 2019 by the Congressional Research Service, links the Journey to Self-Reliance to the SDGs (https://www.everycrsreport.com/files/20190620_R45779_0db7e190b3f3362d82154fcac3b30741189cc1c7.html).

15. NYC Mayor’s Office for International Affairs, Voluntary Local Review Declaration, https://www1.nyc.gov/site/international/programs/voluntary-local-review-declaration.page (last visited June 24, 2022).

16. State of Hawaii Office of Planning and Sustainable Development, Sustainable Development Goals, https://planning.hawaii.gov/sustainability/sustainable-development-goals/ (last visited June 24, 2022); Los Angeles, Los Angeles Sustainable Development Goals, https://sdg.lamayor.org/ (last visited June 24, 2022).

17. Heidi Opdyke, CMU Completes Voluntary Review of Sustainable Development Goals, Carnegie Mellon Univ., Sept. 15, 2020, https://www.cmu.edu/news/stories/archives/2020/september/sustainable-development-goals-report.html.

18. See Press Release, United Nations, “We Are Only as Strong as the Weakest,” Secretary-General Stresses, at Launch of Economic Report on COVID-19 Pandemic (Mar. 31, 2020), https://www.un.org/press/en/2020/sgsm20029.doc.htm; António Guterres, We Are All in This Together: Human Rights and COVID-19 Response and Recovery, U.N., Apr. 23, 2020, https://www.un.org/en/un-coronavirus-communications-team/we-are-all-together-human-rights-and-covid-19-response-and.

19. Remarks by Administrator Samantha Power at the High-Level Political Forum on Sustainable Development, USAID, July 14, 2021, https://www.usaid.gov/news-information/speeches/jul-14-2021-administrator-samantha-power-high-level-political-forum-sustainable-development.

20. Exec. Order No. 14008, 86 Fed. Reg. 7619 (Feb. 1, 2021).

21. Id.

22. Exec. Order No. 13985, 86 Fed. Reg. 7009 (Jan. 25, 2021).

23. American Rescue Plan Act of 2021, Pub. L. No. 117-2, H.R. 1319, 117th Cong., https://www.congress.gov/117/bills/hr1319/BILLS-117hr1319enr.pdf.

24. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, H.R. 3684, 117th Cong. (2021), https://www.congress.gov/117/bills/hr3684/BILLS-117hr3684enr.pdf.

25. Larry McGill, Charles Stewart Mott Foundation, How the Sustainable Development Goals Can Help Community Foundations Respond to COVID-19 and Advance Racial Equity (2020), https://www.mott.org/wp-content/uploads/2020/10/How-SDGs-help-CFs-respond-to-COVID-and-racial-equity-1.pdf.

ELI PRESS Turning U.S. commitments on sustainability and equity from rhetoric to action.

It Could Happen Again

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Author

Mike Smith - Times Picayune | The Advocate

Times Picayune | The Advocate

Current Issue

May-June 2023

Issue

A resident of storm-racked Lake Charles, Louisiana, sits in from of his damaged house.

Lake Charles, Louisiana—Hilda Brown ambled down a wooden walkway with the help of a cane and gingerly took a seat at a table between her badly damaged house and a FEMA trailer. It had been more than a year and a half since Hurricane Laura, but the then-64-year-old widow still didn’t know where to turn. She didn’t have the money to finish repairs on the home, which she couldn’t afford to insure. The Federal Emergency Management Agency had lent her the trailer as a temporary solution, but the deadline to return it was approaching, and she was facing the possibility of being forced to pay steep rent to keep living in it. “It’s been hard,” Brown, who lives on Social Security benefits, told The Times-Picayune | The Advocate in April. “Everything is just bam, bam, one thing after another.”

Since Laura struck in August 2020, Lake Charles, a small city in Louisiana’s industrial southwestern corner, has served to spotlight the shortcomings in America’s system for helping communities rebuild in the wake of catastrophe. The process of distributing key components of long-term aid—meant to help not in the first frantic days after a storm but to rebuild housing and infrastructure—is unpredictable, often caught up in battles over federal spending. As a result, the country essentially forgot one of its cities. Lake Charles, with a population of 85,000, was Louisiana’s fifth-largest city before it was hit by a series of storms. The region’s economy was booming when Laura hit, thanks to the billions being poured into petrochemical plants and gas-export terminals, as well as a steady stream of Texans crossing the border to plunk down cash at three casinos.

But it took more than a year and a half after Laura for the federal government to approve what local officials deemed adequate long-term recovery assistance for the region. And more than two years after the storm, the first federal check from the Department of Housing and Urban Development has still not arrived. The money has been entangled in the government’s byzantine process of doling out such long-term recovery funds, a process that can drag on for many months and get buffeted by the political priorities of congressional leadership and the White House.

In addition to the wait, it also means that communities in the wake of disaster do not know how much Congress will eventually provide, making recovery planning difficult. Appropriations can vary widely from disaster to disaster. “[T]here’s really an unevenness and almost an unfairness in these recovery dollars,” said Andy Winkler of the Bipartisan Policy Center, a Washington think tank that has ex-amined disaster assistance. The kinds of delays that Lake Charles experienced are nearly certain to be repeated—perhaps in Louisiana, perhaps somewhere else. In a time of climate change and intensifying storms, Lake Charles’ struggles have been particularly acute. The city faced four natural disasters in less than a year, beginning with Laura, one of the most powerful hurricanes to ever hit Louisiana. Hurricane Delta followed six weeks later, then a severe winter storm in February 2021 and heavy flooding three months after that—all during the pandemic. One study determined that around half of all homes in Calcasieu Parish, where Lake Charles is located, were damaged by the two hurricanes.

Over the last two years, houses, apartments, public housing complexes and businesses have sat in ruins, exacerbating an affordable housing shortage. The region, which had one of the country’s fastest-growing economies before 2020, has since seen one of the nation’s largest drops in population. Local officials resorted to pleading with Congress and the nation for help as months passed without action. Lake Charles Mayor Nic Hunter called it “a humanitarian crisis right here on American soil.” Both President Donald Trump and President Joe Biden visited, but still southwest Louisiana has waited.

There have been proposals to fix the system, but the nation has been caught up in other challenges and priorities, and the two political parties rarely see eye to eye. Hunter, who rode out Laura in Lake Charles, soon realized that the hurricane’s destruction “was basically our worst nightmare unfolding. Throughout the process, I kept getting pats on the back saying: ‘Don’t worry, it’s coming. Don’t worry, it’s coming,’” Hunter said in April of assurances of long-term disaster relief. “We were let down at every turn.” He spoke from his 10th-floor City Hall office, finally repaired a year and a half after Laura. Nearby, the housing authority was still operating out of a modular building, and Lake Charles’s biggest office tower remained boarded up and fenced off.

Recently, Hilda Brown finally received more help for her house repairs from volunteers and the disaster rebuilding nonprofit SBP, as well as a reduction on her trailer rent to $50 per month. She expected to move back into the house soon, and hoped that the federal money set to arrive in the near future could help with the remaining relatively minor work. “It could be any day,” she said Wednesday of moving back into her house. “I’m so excited.”

In the aftermath of a natural disaster, immediate federal aid is designed to flow in quickly. Federal agencies mobilize to help with search and rescue, food and water distribution, temporary housing, and other tasks. Since the two hurricanes hit southwest Louisiana in 2020, the state has drawn more than $2 billion in help from FEMA and in low-interest loans from the U.S. Small Business Administration, which are among the early disaster responders. But that money falls short of addressing the region’s long-term recovery needs. That’s where longer-term federal aid—normally distributed through what bureaucrats call CDBG-DR, or Community Development Block Grants-Disaster Recovery—comes into play. It is meant to address serious housing, infrastructure, and economic development needs not covered by FEMA and insurance. Typically 70 percent of the funds must benefit low- to moderate-income residents, and families’ homes must be severely damaged to qualify.

But reporting by The Times-Picayune | The Advocate over more than a year in Lake Charles found significant flaws in that system. To start with, there is no set time frame for when, or whether, the aid will be approved, leaving it to Congress and the White House. Money can be appropriated for communities in mere days, or they can wait for a year or more. Consider: It took just 15 days for Congress to appropriate long-term aid intended for victims after Hurricane Harvey; it took 26 times as long for the federal government to agree on an aid package that included Laura.

Then, once Congress does appropriate money, it goes through a complex process to actually distribute it to communities. First, HUD must calculate how much each state, local government, or Native American tribe will receive. Once those allocations are announced, HUD publishes rules for how the money can be spent. This prompts states to come up with their own spending plans, solicit and evaluate public comments, and ultimately submit those plans to HUD for approval. Only then can the money begin to flow. This process can get caught up in budget politics and allegations of political interference. Puerto Rico, for example, faced delays in the aid disbursement process after hurricanes Irma and Maria in 2017 because of unusual requirements put in place after the Trump White House accused the territory’s government of being corrupt, as the Washington Post reported.

Southwest Louisiana’s congressman, Clay Higgins, a far-right Trump supporter, faced accusations of failing to do enough to have the money approved, particularly after he didn’t show up for Biden’s visit to Lake Charles in May 2021. He has defended his record. “It always gets caught up in budget politics,” said Stan Gimont, who once oversaw HUD’s CDBG programs and is now with Hagerty Consulting. “And it just is very difficult to predict what event or what critical mass of events will move that needle for Congress to act.”

A HUD-commissioned study from 2019 found that disaster recovery grants took an average of 4.7 years to be spent, measured from the date of the disaster declaration. The study looked at disasters between 2005 and 2015. With Laura, it took Congress 13 months after the storm to approve funding—an unusually slow process for post-hurricane long-term aid. A month later, in October 2021, HUD announced an initial allocation of around $600 million for southwest Louisiana. It then took three more months to release the rules for spending it. It would take until March 2022 for the region to be approved for an amount Hunter said he considered equitable, $1.06 billion.

The risks of these delays are obvious. Blight worsens. Affordable housing is in short supply. Those who were already struggling to get by and who have temporarily relocated elsewhere may never return. A community survey done in the Houston area after 2017’s Hurricane Harvey showed 18 percent of the unsheltered homeless people who responded said they were homeless because of the storm. Additionally, FEMA’s post-disaster programs providing trailers end after 18 months, and delays mean that people can be cut off from that help well before long-term housing aid begins to flow. That deadline can be extended in certain circumstances—as happened in southwest Louisiana—but those living in the trailers can also be asked to begin paying rent after the 18 months are up.

“People have enough trouble accessing the FEMA program,” said Sarah Saadian of the National Low Income Housing Coalition, which has closely studied post-disaster programs. But when those short-term programs end, she said, “we end up seeing people who are the lowest-income, the most marginalized, lose their housing again. They face displacement, and then in the worst cases are pushed into homelessness.”

U.S. Representative Garret Graves (R-LA), whose Baton Rouge district has been repeatedly hit by disaster, has focused his criticism on the convoluted process of disbursing the aid. “You’ve got a process that is so ridiculous,” said Graves. “You can either spend all this time and money trying to get it perfect, or you can lean a little bit more towards getting the money out the door quickly.”

Residents Allison and Charles Ned were among those who fell through the cracks. During Hurricane Laura, they had squeezed into a friend’s house with three other families near Beaumont, Texas, about an hour away. They drove back to Lake Charles the next day, navigating trees and downed power lines—an obstacle course laid down by 150 mph winds. For 20 years, they had rented a house in Lake Charles, where Louisiana Cajun and Creole traditions mix with Texas cowboy culture. Allison, 57, had a cleaning service. Charles, 58, worked for a house-moving company and is now a maintenance worker for Calcasieu Parish schools. He prides himself on self-sufficiency and sports a belt buckle he won in a calf-roping competition.

When they made it home after Laura, the couple found their roof had been lifted up and set back down by the storm. It was leaking everywhere. The Neds had raised their two children there and kept two horses in the backyard along with their Akita, Champ. Charles, normally stoic, cried as he took in the damage. For six months, they stayed at a friend’s house in Jennings, 40 minutes away. FEMA eventually provided a trailer, which they set up in the yard next to their damaged house. Their landlord battled his insurer and decided to sell, Allison said. The Neds bought the house as is, still unrepaired and unlivable—and they didn’t have the cash to fix it.

But each time they asked for help in rebuilding, they were rejected because the system was not set up to help people in their unique situation. They did not qualify because they didn’t own the home at the time of the storm, even though they’d lived there for two decades. Allison said she wrote to the governor hoping an exception could be made, but received no response. Charles said: “All you could do was pray to God.” He did what he could, using skills from his previous job to make the house level again.

Around 18 months after Laura, the Neds were told they would soon have to start paying rent for their FEMA trailer this spring. Under federal rules, they would have to move out of it by the end of October. It took until early 2022 for the Neds to get a hand to rebuild, and when they did, it didn’t come from the government. Instead, the SBP nonprofit, a recovery organization founded after Hurricane Katrina, along with volunteers from organizations including the Fuller Center Disaster ReBuilders, came to their aid.

But as trying as that period was, they were on their own land, unlike others caught up in the affordable housing shortage, which long-term disaster relief can help solve. Michael Blaney, 69, had been living in a damaged and decrepit public-housing complex for the elderly. The housing authority did not want people to live in those conditions and threatened some residents, including Blaney, with eviction, although it also attempted to find alternative housing for them. The eviction notice was eventually lifted, and Blaney remained in the complex despite the authority’s concerns; he didn’t find a new place to live until almost two years after Laura. He is now living in a privately run building for the elderly and disabled in downtown Lake Charles that didn’t reopen until April. Many others ended up leaving the city entirely. Estimates from July 2021 show the metro area, which includes Calcasieu and Cameron parishes, had the biggest population drop in the nation that year. The two parishes combined lost 5.3 percent of their residents — around 11,700 people

Criticism of the unpredictability of long-term disaster relief has come from a range of politicians and advocates seeking to change the system. Proposed solutions often revolve around one key component: a permanent authorization of funding. “Because it’s not a permanently authorized program, you really don’t know if it’s going to be provided for any given event, and even if it is provided, what its timing might be,” said Gimont, the former HUD official who also serves on a disaster response reform task force with the Bipartisan Policy Center. In one proposal with bipartisan support, a fund would be made permanently available for federal block grants, eliminating the need for congressional authorization. That money could serve as a down payment, and if more is needed, Congress could step in.

The Reforming Disaster Recovery Act, sponsored by Senator Brian Schatz (D-HI), includes a provision for funding the block grants. Senator Bill Cassidy (R-LA), is among the co-sponsors. Graves, the Louisiana congressman, has offered his own proposal, co-sponsored with U.S. Delegate Stacey Plaskett (D-VI). He, too, wants a pre-authorized set of disaster funds to be available, but favors having FEMA handle it rather than using the current block grant system.

Asked about the delays, HUD cites the lack of a readily available source of funding. “The absence of a permanently authorized CDBG-DR program contributes to much of the delay as does the continued absence of a standing source of CDBG-DR funds, which are now only made available as supplemental appropriations rather than as an annual part of the HUD budget,” a spokesperson said in response to questions.

After such a long struggle, the community seems to have turned a corner. A number of popular restaurants and other businesses have managed to reopen. Even the assurance that long-term federal relief was finally coming seemed to provide a jolt of optimism. Still, it’s not hard to find destruction and blue tarps in the city. Hunter, who has lived in Lake Charles his entire life, believes a bigger city with more political influence would have seen a faster response. “Had Hurricane Laura hit another major city with more congressional support, with more population, I think things would have been very different,” he said. “And that is what I hope changes in the future.” There should be a formula for disaster funding, he said, “versus simply the whims and the wills of Congress or the president. It shouldn’t be such a political process.”

TESTIMONY This ProPublica-sponsored article, told by a local journalist, tells how homes and businesses still sit in ruins in a small Louisiana city, left behind by the government’s convoluted and unpredictable system for rebuilding communities devastated by natural disasters.

Caution Without Repressing Innovation

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Author

Gary Marchant - Arizona State University

Arizona State University

Current Issue

May-June 2023

Issue

Parent Article

A Technology Tries a Leap

Quantum computing is often perceived as the next “next big thing.” But it is not unique—other emerging technologies likewise portrayed as the next big thing include 3D printing, brain-computer interfaces, blockchains, nuclear fusion, CRISPR gene editing, and artificial general intelligence. This impending wave of technology revolutions comes in the wake of society assimilating, or in the process of assimilating, other technologies such as genetically modified foods, synthetic biology, the internet and social media, smart phones, electric vehicles, and the internet of things.

While these relentless waves of technology innovation may overwhelm many citizens and our government resources, they do provide us with important lessons for technology governance. One of the most important is the critical role of timing—relevant for technology proponents, technology critics, the general public, and government.

For technology proponents, the tendency for hype is a key timing lesson. From the seemingly perpetual vision of flying cars, to the promise of genetically customizing our drug prescriptions, over-optimistic promises undermine confidence in this latest tech and its developers. In fact, both the technology and regulatory frameworks for those technologies continue to progress, but at a much slower pace than predicted.

This problem is best summarized by futurist Roy Amara’s adage that “we tend to overestimate the effect of a technology in the short run and underestimate the effect in the long run.” The lesson for quantum computing is that the benefits of the technology are likely to be more modest and delayed than the initial extravagant claims.

Technology critics can commit the opposite error, prematurely predicting for new tech worst-case consequences that never manifest. For example, critics of the first genetically modified organisms predicted that the modified bacteria may irrevocably alter the chemistry of the upper atmosphere and cause a catastrophic ice age. Critics of nanotechnology claimed that nanomaterials were the “new asbestos” and called for a worldwide moratorium on all uses.

None of these fearsome predictions came true, but they did result in unnecessary technology delays or costs. Conversely, as the European Union documented in its report “Late Lessons From Early Warnings,” early indications of real risks are often ignored, to everyone’s ultimate detriment. The lesson for quantum technology is the need for carefully discerning real from speculative risks, and dividing evidence-based from worst-case predictions for an emerging technology.

The public response to new technologies also evolves over time. While public engagement is critical for both pragmatic and philosophical reasons, it is human nature to resist change, so the public usually opposes new technologies at the outset. As Isaac Asimov noted, “All through history there had been resistance—and bitter, exaggerated, last-ditch resistance—to every significant technological change that had taken place on Earth.” In some cases the initial opposition dissipates with familiarity, as was the case with blood transfusions, in-vitro fertilization, microwave ovens, and hopefully electric vehicles. In other cases, such as nuclear energy and GM foods, the initial opposition persists or even grows over time, even if contrary to expert opinion. So, for quantum technologies, it will be critical to engage the public, but with the knowledge that initial resistance is expected, but may not reflect long-term opinion.

Finally, for government, the challenge is to be cautious without repressing innovation. Many technology harms should have been predicable and preventable with anticipatory governance. But not all risk can be anticipated ex ante, and we also need governance systems that are agile and foster resilience, to address real risks when they arise, rather than a parade of phantom risks hypothesized before a technology is deployed or even developed. Quantum computing technology provides an opportunity to learn and apply these lessons in timing.

Caught in a Squeeze

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Author

Jeremy Bernstein - InsideEPA.com

InsideEPA.com

Current Issue

January-February 2023

Issue

Joe Biden caught between a donkey and elephant, which are fighting

Though Joe Biden took a victory lap after the elections, saying voters had chosen to “continue addressing the climate crisis,” the incoming House Republican majority is itching to do all it can to investigate his administration’s implementation of the new climate law, to legislate against it, and generally to complicate executive action.

Major bipartisan legislative initiatives are unlikely, especially in the early days, when Republicans will be in aggressive oversight mode and messaging their support for fossil fuels. While there may eventually be room for narrower, bipartisan measures dealing with nuclear energy, hydrogen, critical-mineral supply chains, permit reform, and carbon-capture projects, even those are unlikely to win enough support from an unruly and divided Republican caucus, let alone a split legislature.

“When you’ve got divided government, you have the tools that you have at your disposal and walking away from those tools is dereliction of duty,” says Representative Chip Roy (R-TX), a member of the Trump-aligned House Freedom Caucus. “You’re not going to pass grand bipartisan bills to save America.”

Moreover, while Biden may be able to count on some support from House and Senate Democrats for any new legislation, many on the party’s left flank are reluctant to make concessions to Republicans—even if it were to hand a bipartisan win to a Democratic White House. Many Democrats and their environmentalist allies are instead eager to step up their advocacy for clean energy programs and policies, emboldened by a less-than-stellar midterm showing by Republicans and their supporters. “Many Democrats talked about their clean energy investment and their clean energy leadership in the campaign. That really kind of sets us up to continue pushing forward into our energy future,” says Jamal Raad, president of Evergreen Action, a group that advocates for a whole-of-government approach to climate change.

Their efforts may even be aided by the fact that significant quantities of the $500 billion or more in zero-carbon energy spending provided by Biden’s legislative achievements in the last Congress—the Bipartisan Infrastructure Law and the Inflation Reduction Act—will flow to Republican-controlled states and districts. Nine of the 10 congressional districts with the most planned or operating renewable capacity are held by Republicans, with House GOP leader Kevin McCarthy’s (R-CA) number two on that list. McCarthy’s district also has the distinction of having the most planned and operating grid-scale battery projects.

While no Republicans voted for the IRA, many of these renewable-heavy GOP districts stand to benefit the most from the law’s tax credits, grants, and other funding opportunities, providing a significant home-state incentive for Republican lawmakers to preserve the law—even as they do all they can to scrutinize and demonize it. “This may have been a bill that was passed solely by one political party, but the benefits are clearly bipartisan,” says Bob Keefe, executive director of E2, a business group that advocates for affirmative environmental policies.

Even if they did want to repeal the climate portions of the law, Republicans have little opportunity because much of it is structured as multi-year appropriations or tax credits, giving Biden officials at various agencies wide latitude to use that money. House Republicans’ ability to go after the IRA “is really limited,” concurs Conrad Schneider at Clean Air Task Force. “They can conduct oversight and ask questions, but they can’t really slow down the Treasury, the IRS, and DOE from implementing these programs.” As a result, he says, “The ball is in the Biden administration’s court to get these programs set up and get the money out as quickly as possible.”

The new House Republican majority may eventually cut some narrow legislative deals with the Biden White House and congressional Democrats, but their first priority is vigorous oversight and investigation—if only as a way to give McCarthy, who has a razor-thin majority and limited support from within his own caucus, a way to assert himself. The top House Republican “seems likely to start out by settling scores, asserting his leadership, and looking for ways to show the GOP electorate that he has brought change to Washington,” Clearview Energy Partners wrote in a post-election note to clients. Narrow majorities in both chambers and a Democratic president “may not afford many viable legislative options, but vigorous oversight and investigation efforts could give McCarthy a way to mark his presence.”

Both sides have been preparing for the action well in advance. A month before the election, Representative Cathy McMorris Rodgers (R-WA), the incoming chair of the House Energy and Commerce Committee, announced that she had hired a new chief counsel for oversight and investigations. Days later, EPA—at the urging of the White House—announced it has also brought on a new deputy general counsel for oversight and a new senior legal counsel. At or near the top of the GOP oversight list is the IRA, which Rogers has likened to “Solyndra on steroids,” a reference to the Obama-era solar manufacturer that collapsed after receiving a federal loan guarantee. “It’s critical that we are not wasting hundreds of billions of dollars on a political agenda that is forcing a green energy transition that jeopardizes our reliability and increases costs,” she says.

The Conservative Climate Caucus—a group whose members include scores of House Republicans—also has the law in its sights. The final IRA “was a bad piece of legislation,” a spokeswoman says. “We stand at the ready to support each relevant Republican committee chair’s efforts to conduct proper oversight of these funds and the impact of the IRA,” she adds.

In addition to the IRA, Rodgers and the other GOP committee chairs are planning inquiries into a host of energy and environmental programs. For example, Rodgers has already indicated concerns about EPA’s air quality standards, Superfund cleanup spending, proposed regulation of PFAS, as well as the Department of Energy’s technology transfers to China. Representative Bruce Westerman (R-AR), the new chair of the House Natural Resources Committee, has signaled investigations into programs at the Interior Department, such as its effort to craft a new five-year plan for offshore oil and gas leasing in federal waters.

Some programs—such as the DOE loan system that supported Solyndra—may even face scrutiny from more than one committee. For example, Rodgers, as well as Representatives Jim Comer (R-KY) and Frank Lucas (R-OK), the new chairs of the Oversight and Investigations and Science, Space, and Technology Committees, respectively, have all signaled plans to investigate the DOE program.

The “scope and scale of [DOE’s] expanded loan authority, related credit subsidies, and rapid four-year timeline for making commitments raise questions about increased risks of waste, fraud, and abuse, especially if the administration uses the program for its rush-to-green agenda,” Rodgers warned Energy Secretary Jennifer Granholm recently.

Several key Republican committee chairs are also conducting broad, coordinated investigations into multiple agencies’ adherence to the “major questions doctrine,” which requires clear congressional directives on issues of major economic or political significance, in the wake of the Supreme Court’s ruling last term in West Virginia v. EPA. Rodgers, for example, is investigating compliance by DOE, EPA, the Federal Energy Regulatory Commission, and the Consumer Product Safety Commission, among others. Westerman, meanwhile, is similarly investigating the National Oceanic and Atmospheric Administration, the Forest Service, and the White House Council on Environmental Quality.

And Representative Jim Jordan (R-OH), new leader of the Judiciary Committee, sent letters seeking documentation from the Justice and Homeland Security departments, among others, regarding officials’ consideration of the doctrine as they write new policies. “The letters demand that recipients provide the House Judiciary Committee all documentation about responses to and policy changes based on West Virginia v. EPA, and explain how all of their completed, pending, and expected rules made since Biden entered office are consistent with the decision and supported by statute,” the committee said. “We just want to make sure that the agencies within our jurisdiction understand, we’re gonna pay attention to this and make sure that the court’s decision is followed,” Jordan added.

Given the Biden administration’s whole-of-government approach to climate change, many officials from non-environmental agencies are also in the GOP cross-hairs. Chief among them is Securities and Exchange Commission Chairman Gary Gensler, who has rankled Republicans with his plans to require corporate reporting of potential financial risks from climate change as well as proposed rules for corporate environmental, social, and governance policies, known commonly as ESG.

Republicans charge such policies, which generally encourage companies to refrain from doing business with polluting industries, are at odds with shareholder interests and are being advanced by unlawful collusion between supportive corporations as a way to eliminate fossil fuels while providing a competitive advantage to foreign companies. “The ESG movement attempts to weaponize corporations to reshape society in ways that Americans would never endorse at the ballot box. Of particular concern is the collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad,” a group of Republican senators said recently.

Their scrutiny of such matters in the new Congress is likely to extend well beyond Gensler and the SEC. Republicans are planning to launch unprecedented investigations into an array of private-sector entities that they perceive to be advancing “woke capitalism” and its support for ESG concerns. GOP members will also be looking at corporate policies on diversity, equity, and inclusion. “Over the coming months and years, Congress will increasingly use its oversight powers to scrutinize the institutionalized antitrust violations being committed in the name of ESG and refer those violations to the Federal Trade Commission and the Department of Justice,” the Republican senators wrote.

Although Democrats have historically not shied from hauling fossil fuel and other industry executives before their committees, GOP lawmakers have largely focused their oversight on the executive branch. But those days are now over, says former Virginia Republican Representative Tom Davis, now a lawyer in private practice. He says today’s Republicans expect to gain little from such efforts. Instead they will seek to tamp down corporate support for climate, ESG, and other policies. Given Congress’s limited success in prying documents from both the Obama and Trump administrations, there is now “a growing awareness among congressional oversight staff that letters and document requests to the [Biden] White House or federal agencies are unlikely to produce useful information,” he and other lawyers at Holland & Knight said recently. “For that reason, there is a consensus among Republican oversight staff that the most politically effective oversight should focus on entities outside of government who have more limited means of resisting congressional investigations and greater incentive to respond to requests from congressional committees.”

Among those likely to be affected include an array of financial services entities, the entertainment, technology, and retail industries, as well as the law firms that may represent them. Even the U.S. Chamber of Commerce, long the bedrock of GOP support, and some of its member companies could be a target over its endorsement of ESG principles.

While House Republicans may be targeting some industry groups over their support for ESG policies, Senate Democrats are likely aiming at others. Given their continued control of the upper chamber, Democrats will almost certainly continue their investigations into the fossil fuel industry and its advocacy opposing tough new climate policies. And they could also push back on GOP attacks on SEC oversight of financial risks from climate change and ESG policies by conducting their own hearings to tout the climate benefits of the administration’s measures.

Republicans may not be in the mood for serious legislating, at least not initially, but they will be pushing messaging bills aimed at ramping up fossil fuel production and domestic mining for critical minerals needed for electric vehicle batteries, as well as streamlining permitting and other provisions. Rodgers and Westerman indicated late last year that the legislation will be one of the first measures on which the House will vote after Republicans take control. “We need to return to American energy independence and bring down gas prices, and that’s unleashing American energy,” Rodgers said.

The legislation is expected to be based on a series of bills Rodgers and other Republicans introduced in the 117th Congress. These include Rodgers’s bill, known as the American Energy Independence From Russia Act, which requires the president to develop plans to increase domestic production to offset Russian supplies, approves the Keystone pipeline, bars imposition of moratoria on new energy leases, and prohibits the withdrawal of federal land from energy development. Other provisions are also likely to be drawn from Rodgers’s Securing America’s Mineral Supply Chains Act, which eases permitting for critical mineral mining, limits judicial review of mining projects, and encourages exploration and production.

Representative Garret Graves (R-LA), who led a GOP task force that helped craft the party’s energy agenda, is also slated to have a piece of the action. His bill, known as the Building United States Infrastructure Through Limited Delays and Efficient Review Act, will provide the basis for a series of wide-ranging reforms to the National Environmental Policy Act. These include limiting the scope of environmental reviews, raising the bar for requiring any mitigation, setting strict deadlines for agencies to complete their reviews, and curbing opportunities for judicial scrutiny.

Such legislation has little prospect of winning enough support to overcome a Senate filibuster—even if Majority Leader Chuck Schumer (D-NY) were to allow it to come up for a vote. But it serves other purposes, including uniting Freedom Caucus and other Republicans around oil and gas issues, a topic on which they generally agree, while also allowing the GOP to draw policy contrasts with Democrats.

Republicans have little concern that their legislation may undermine efforts to address climate change, arguing that increasing domestic fossil fuel production and mineral extraction is a net climate benefit because U.S. producers are cleaner and more efficient than their foreign counterparts. “Our energy solutions are climate solutions,” Rodgers said. “America can and must lead the world in reducing emissions without trading our security to the Chinese Communist Party and sacrificing our energy reliability and affordability to OPEC+.”

In fact, Republicans have largely conceded the scientific argument over climate change, preferring instead to promote policies that increase energy supply. “I’m not here to debate climate change,” Representative Bill Johnson (R-OH), a member of the Energy and Commerce Committee, said recently. “We are not climate deniers. We just believe that we have better alternatives.”

Some Republican messaging bills are also likely to work in tandem with committees’ oversight of the Biden administration’s implementation of the IRA and other recently enacted climate legislation. Johnson, for example, who represents a gas-heavy district in southeastern Ohio, is working with the industry to raise concerns over a $4.5 billion IRA program that requires DOE to give rebates for as much as $14,000 per household to install electric-powered home appliances rather than gas-burning products. “We are supposed to be looking at energy efficiency, not social re-engineering,” Johnson said recently. “This is an attempt by the department to pursue a rush to [a] green agenda under the guise of efficiency standards.”

While enacting such legislation is unlikely given Democratic opposition, McCarthy and other Republicans have already signaled they plan to use White House requests to raise the debt ceiling and other must-pass funding measures as leverage to target climate and other spending. “Given that there is such bad blood, it’s hard to imagine Republicans walking away and saying. ‘We’re not going to touch anything [in the IRA],’” says Barry Rabe, a professor at the University of Michigan.

Republican messaging bills aren’t expected to advance, but some of the energy and environmental issues they are seeking to address could eventually win support from Democrats and the Biden White House, though any legislative deals are likely to be significantly narrower than what most Republicans favor.

Top of the list is a bill to overhaul environmental permitting for energy infrastructure, mining, and other projects, especially those that are crucial for clean and renewable energy. While Republicans have long sought to streamline permitting practices, Democrats and environmentalists have resisted, though Democratic support for such measures is now shifting. The White House has signaled that it wants to streamline permitting, especially if it hopes to approve scores of renewable energy projects and their related transmission build-outs to meet its greenhouse gas reduction targets. “Today, far too many energy projects face delays—keeping us from generating and shipping critical, cost-saving clean energy to families and businesses across America,” the White House said.

And Senator Joe Manchin (D-WV), who will continue to chair the Energy Committee, won a commitment from Democratic leaders in the last Congress to vote on a permit reform bill after he eventually agreed to support the IRA. His bill failed, given strong opposition from progressive Democrats, who feared it would undercut community participation in project reviews, and Republicans who claimed it did not do enough to speed permitting.

But in a sign of how far Democrats have moved on the issue, the House Sustainable Energy and Environment Coalition, a group of more than 80 Democratic lawmakers, late last year announced their support for a narrow permit reform package to speed construction of new transmission for renewable energy and increased community participation. “Building out the requisite clean energy infrastructure as quickly and as equitably as possible can only be achieved if disadvantaged communities are properly engaged in the permitting process, rather than ignored and disproportionately burdened, as has happened all too often in the past,” the group said.

Such narrow proposals may be enough to get progressive Democrats to the table but there is no guarantee they will be able to reach a deal with Republicans and a White House eager to demonstrate its bipartisan bona fides. Still, a series of other, less high-profile issues related to zero-carbon energy are also expected to win bipartisan support, including nuclear energy production, hydrogen development, carbon capture and storage, and critical minerals production. “Bipartisan support exists for clean energy investments, particularly clean energy technologies like hydrogen that leverage traditional energy resources and infrastructure,” says Christine Wyman at the Bracewell law firm.

Given growing demand for electric vehicles and the critical minerals needed to produce their batteries, many also expect Congress to ease their production and supply, though such efforts face hurdles especially if Republicans insist on including uranium as a critical mineral. Graves says Republicans are more likely to agree if Democrats take a targeted approach to climate-related issues, rather than broad, high-level actions. He urged his colleagues to talk less about “climate” and instead focus on redesigning the grid, investing in resilience, and bringing down the costs of energy. “We’re all on the same page” on many of these issues, he adds.

But even if legislative efforts fail, the administration is already crafting a series of regulatory reforms to the NEPA and Clean Water Act rules that many in Congress are hoping to overhaul as part of a permit reform package. “The Biden administration is likely to carry through with executive action on permitting reform to both ensure leverage in negotiating with Congress and also to advance what it views as an appropriate regulatory framework to energy infrastructure,” says Bracewell’s Wyman.

In addition to permitting reform, EPA and other agencies are similarly preparing to release a wave of new regulatory actions governing both conventional pollutants and greenhouse gases under existing legal authorities that will further drive a clean energy transition, including tougher particulate matter standards, new rules for methane releases from new and existing oil and gas production, stricter emissions standards for light- and heavy-duty vehicles, and new limits on emissions from power plants and a range of industrial entities.

Biden could go even further if he decides to declare a climate “emergency,” as many in the left wing of his party are urging as a way to clamp down on fossil fuel supply. While such a declaration is unlikely given the administration’s past sensitivity to high fuel prices, Biden could use a range of emergency authorities that he has already signaled a willingness to exercise, such as when he invoked the Clean Air Act to extend approved use for high-grade ethanol, his release of millions of barrels of oil from the Strategic Petroleum Reserve, and his use of the Defense Production Act to bolster support for critical mineral mining, solar energy, and other clean energy technologies, according to the ClearView consultancy. Even if Biden took no new action on the basis of such a declaration, it could still give him a tool to threaten future restrictions—crucial leverage in any broader political conversation on clean energy and climate change. But if Democrats decide that their continued control of the Senate hinges on a more centrist path, neither Schumer nor the White House is likely to be eager for such an approach. As a result, Senate “Democrats might opt to repeatedly pass climate ‘messaging’ bills out of committee to blame the GOP for their obstruction,” ClearView says.

Moreover, any declaration of a climate emergency would almost certainly face stiff legal challenges, with ultimate review from a Supreme Court whose conservative majority has demonstrated its willingness to clip the wings of overly ambitious executive actions.

Legal challenges to any climate emergency—as well as much of the administration’s already ambitious regulatory agenda—are among the myriad roadblocks the Biden administration must navigate in the new policy landscape of a divided government. In addition, the president’s prospect for winning new legislation is limited, he will face significant oversight demands from House Republicans, and there will be competing demands from Democrats and other allies.

It may not be the best environment for Biden as he prepares to take on a raucous Congress and weighs his own political future in the coming months, ahead of a tough election for Democrats in 2024. TEF

COVER STORY Joe Biden may have been able to push the most significant climate bill ever through a Democratic Congress in the first two years of his presidency, but he will face much less open legislative ground in the next two.

Reclaiming Control

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Author

Sanne Knudsen - University of Washington, Seattle

University of Washington, Seattle

Current Issue

January-February 2023

Issue

Steps of the Supreme Court, which has vines crawling up and entwined around the columns

In their own vernacular, techies might call it a disruption. Popular television might call it an extreme makeover. Legal types might call it a reset of power between Congress and the courts. Call it whatever, environmental law needs it.

That is, what environmental law requires in a time of ecological crisis is for Congress to reclaim control over its own words. Have you read the text of the foundational environmental statutes lately? The Clean Air Act, the Clean Water Act, CERLCA, RCRA, NEPA, NFMA, and of course the Wilderness Act and the Endanger Species Act? Congress did not lack conviction in passing these laws. And yet there is often a disconnect between the stark conviction of the words on the page and how these acts have actually been implemented. Part of the problem lies with the courts.

Despite their influential role in shaping policy, when it comes to environmental law, courts don’t always champion the bold visions of Congress. William H. Rodgers, author of the leading treatise on environmental law, laments how enthusiasm for environmental values in law has flagged since the 1970s despite their ongoing presence in legislative text. Likewise, in his book Environment in the Balance, Jonathan Cannon observes that the Supreme Court largely embraced environmental values when the laws were first enacted, but it “has since distanced itself and adopted a more neutral and often even skeptical stance in its environmental decisions.” Harvard law professor Richard Lazarus has made similar observations about the Supreme Court’s apathy, even downright hostility, toward environmental law in recent decades.

If courts have lacked inspiration in implementing environmental law, Congress is the answer. But not by revisiting individual laws. Sure, given the experience of half a century, Congress could fine tune the laws and give more nuanced instructions on carefully framed questions of statutory interpretation that have been the subject of countless legal decisions over the years.

Rather than reassert itself in a piecemeal fashion, Congress could reclaim its voice in one move by setting default standards and presumptions for courts to apply whenever they review disputes arising under federal environmental law. In particular, Congress can use a cross-cutting statute—one could call it the Environmental Judicial Review Act—to ensure courts uphold the law as Congress wrote it. Such a statute would replace the existing Administrative Procedure Act, or at least the parts related to judicial review of environmental laws. It could draw crisper lines, with a particular eye toward canons of construction and standards of review that further the protective and public-minded underpinnings of existing environmental legislation.

This new law could, for example, codify norms of precaution by adopting presumptions in favor of agency action in the face of scientific uncertainty. It could direct courts to read the words of individual provisions in the context of an act’s statement of purpose. It could, in short, use the authority that Congress already has in shaping judicial review, but do so in a way that allows the existing environmental statutes to live up to the boldness and vigor of their own text. In doing so, Congress would also be tackling a larger dynamic looming in the shadows—one where courts undercut congressional intent by pulling on various vague standards of judicial review and constitutionally rooted doctrines like standing to shape environmental policy not out of conviction but out of avoidance.

At this point in the argument, a reader may have questions and a degree of skepticism. But, hopefully, some interest. The goal is to move beyond intrigue and show why this is not a radical idea, but a productively disruptive (and necessary) one.

At the heart of why Congress needs to reclaim its voice in environmental law lie three precepts. First, there is simply the pragmatic truth that environmental laws are important to a functioning society—Congress should take special care in making sure these laws are working as intended. Second, the language of the federal environmental statutes amply demonstrate that these laws were meant to leverage robust legal infrastructure to protect public health and welfare. Third, despite the clear aims of Congress in adopting many of the federal environmental statutes, courts have used the hegemony of administrative law to sidestep those aims by engaging in esoteric debates about how to distribute power among the three branches—and then leveraging the blurry lines of those debates to claim power for their own.

Starting with the observation that environmental laws are indispensable to a well-ordered society, consider the work of Herman Daly—professor emeritus of the University of Maryland School of Public Policy, former senior economist at the World Bank, and cofounder of the International Society of Ecological Economics. Daly believes that the economy is a subsystem of the environment. The functioning of the economy depends on the productive capacity of nature (to supply ores or trees) and its assimilative capacity (to receive the wastes from human activity). These biophysical limits are inescapable governors on economic growth.

Daly’s logic helps explain why laws that control the extraction of resources and the output of wastes are simply pragmatic and necessary elements of any society with an interest in self-preservation. We conserve natural resources because otherwise we ultimately won’t have any. We limit toxic outputs in our air, water, and soil because there are biophysical limits on how much waste nature can assimilate—and we don’t relish unnecessary disease or death. It follows that at a minimum one would expect law to set limits on scale (like how much waste can be sustainably discharged into a given waterway) and let market forces operate within those limits. In this way, law is a useful tool for ensuring unbridled consumption doesn’t destroy the very natural systems that fuel the economy. Even a free-market advocate like Richard Epstein didn’t mince words when he explained, “If no one can breathe or eat, then markets too will quickly die of asphyxiation. The only way, therefore, to avoid the catastrophe is to recognize that a system of unrestrained externalities, unrestrained pollution, and unrestrained destruction is going to lead to that unacceptable outcome.” At the start of her book Nature’s Trust, Mary Christina Wood is equally dark and direct: “Any government that fails to protect its natural resources consigns its citizens to misery—and often death.”

Not only is environmental law necessary, but because of the collective consequences of resource use, it is also a public-minded enterprise that is uniquely intolerant of inaction. Joseph Sax, a giant in our field, observed decades ago that agency restraint is not the end goal when it comes to environmental law: “Positive government involvement is essential in dealing with externalities like pollution. There is no evident environmental principle analogous to the ‘hands off’ principle that underlies basic human rights.”

That environmental laws are important suggests that Congress ought to treat them as such. And, to judge by the words on the pages of the United States Code, Congress has. This leads to the second major contention motivating the call for an Environmental Judicial Review Act: Congress said what it meant and meant what it said. As I have written about elsewhere, in studying the breadth, depth, and longevity of the federal environmental statutes—both individually and collectively—one can’t help but stand in awe of the vast legal infrastructure and cascading commands that Congress has created to prevent and remedy environmental harms. Air, water, chemicals, waste, mining, endangered species. Saving marine mammals to New Source Review, the scope of these laws is impressive.

But it is not just the breadth. There is also depth in the commands. Permitting, planning, technology standards, ambient air and water quality standards, fines and jail time, citizen suit provisions that fortify enforcement. They all add up to a body of commands designed to throw the significant weight of the law behind environmental protection. They are all consistent with a view that, in enacting these laws, Congress was committed to actually addressing complex resource use dilemmas and setting priorities.

The boldness of Congress’s intent is on prominent display if one studies the purpose statements written into the legislative text. NEPA provides the most straightforward illustration: “The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” The act then declares the federal government’s continuing responsibility to serve as “trustee of the environment for succeeding generations”; and to assure that the environment is used in a manner “without degradation, risk to health or safety, or other undesirable and unintended consequences.”

NEPA does not stand alone. In the Clean Water Act, Congress’s aim was nothing short of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the nation’s waters.” To achieve that goal, Congress called for the elimination of pollutant discharges by 1985 and the prohibition of discharges of toxins in toxic amounts. Whatever the details of the implementation, the ultimate goal does not lack clarity. In the Clean Air Act, Congress is clear about the government’s responsibility in controlling the complex collective-action problem that is air pollution. And the Endangered Species Act is meant to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”

In the public lands realm, the Wilderness Act gets most of the attention for its almost poetic devotion to protect wilderness, “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Less poetic, but still devoted, the workhorse lands operated by the Forest Service and the Bureau of Land Management express a steadfast commitment to restraint. In the National Forest Management Act, Congress declares that “the Forest Service, by virtue of its statutory authority for management of the National Forest System, . . . has both a responsibility and an opportunity to be a leader in assuring that the nation maintains a natural resource conservation posture that will meet the requirements of our people in perpetuity.” These are not statements uttered on the debate floor or explanations found in committee reports. This is not legislative history. It is legislative text providing a direct window to legislative intent.

There is no reason to think that purpose statements should be ignored simply because they are nontechnical in nature. Quite the opposite. The plainspoken forthrightness of many purpose statements may be precisely the reason they should be taken seriously. In a University of Chicago Law Review article entitled “Enacted Legislative Findings and Purpose,” Jarrod Shobe advances a similar argument as he urges judges to give greater weight in statutory interpretation to enacted statements of findings and purposes. This is especially sensible in the area of environmental law, where the breadth and depth of the supporting legislative text point to a vast and strong congressional mandate for protecting public health and welfare.

If the visions of Congress are so bold, how have courts side-stepped them—and why is reining in judicial review a useful approach? After all, courts aren’t free to ignore values firmly planted in statutory text. This leads to the third of the three claims that drive this idea for an Environmental Judicial Review Act: that is, courts have allowed administrative law to play an outsized role in the shaping of environmental law in a way that runs contrary to the original vision for these statutes.

How so? Part of the answer is that ambiguity in environmental legislation creates gaps of power. Open questions of interpretation will be answered by either agencies or courts. This is where administrative law comes into play, and this is where things get interesting because administrative law itself is filled with unanswered questions about where the power should lie between expert agencies and courts when there is statutory ambiguity.

Recall that the Administrative Procedure Act, a congressional statute passed in 1946, provides the default set of instructions for judicial review. For all agencies with all types of missions operating in all kinds of subject areas, the APA lays out a default set of procedures for rulemaking and adjudication, a default cause of action, and standards of review. But when the APA was enacted in the months after World War II, times were different. There were fewer agencies operating under fewer statutes and with more confined power. Rulemaking was not the dominant form of implementing statutory mandates, adjudication was. Now add to the mix that the APA is a bare-bones statute, leaving many unanswered questions about a court’s role. For example, “arbitrary and capricious” is not defined. When an agency’s failure to act amounts to action “unlawfully withheld or unreasonably delayed” is also unclear. Ultimately, this means courts have been left to fill in the gaps about their own role in judicial review.

Because administrative law doctrines are largely crafted by courts, and because there is flexibility in how and when those doctrines are applied, there is potential for courts to operationalize these doctrines in ways that undermine congressional commitments made through environmental law. The Supreme Court sits at the apex of power in this regard. In Lujan v. Defenders of Wildlife, the Court sidestepped the applicability of the ESA to funding international projects by developing instead standing law. In West Virginia v. EPA, the Court sidestepped the expertise of the Environmental Protection Agency and the many tools that Congress made available to EPA for protecting public health by leaning on the judge-made “major questions doctrine” to declare Congress should have been more specific in giving the agency authority. In SUWA v. Norton, the Court dismissed a claim involving the Bureau of Land Management’s failure to keep off-road vehicles out of wilderness study areas by taking a narrow view of when judicial review is appropriate for agency inaction. In Robertson v. Methow Valley Citizens, most famous for its pronouncement that the National Environmental Policy Act simply prevents “uninformed decisions, not unwise ones,” the Court sidelined “substantive NEPA” for the more doable “procedural NEPA” by appealing to a generic judicial review truism that “courts are not to substitute their judgment for that of agencies.” In these ways, administrative law has played an outsized role in setting national environmental policy.

To be fair, when courts turn to administrative doctrines rather than wrestle directly with the merits of the case, the sidelining of environmental values is not always intentional. Administrative law and environmental law are, after all, intertwined. Still, though the entanglement of the two is understandable, substituting one for the other is not always appropriate. When courts resolve environmental legal disputes by turning to administrative law doctrines, they risk elevating the values animating administrative law over the ones that Congress wrote into statute.

The point, of course, is not that administrative law values are unimportant. In his book The Chevron Doctrine: Its Rise and Fall and the Future of the Administrative State, Thomas Merrill distills the values animating administrative law, explaining that they do no less than uphold the rule of law and its constitutional structures, promote accountability, and encourage high-quality agency decisionmaking. No doubt these are important aims. At its core administrative law stands to support the rule of law and ensure the voice of the nation’s constitutionally appointed lawmaker—Congress—is heard. And so, we have come nearly full circle. That is, if the administrative law doctrines are used in a way that subverts the intent of Congress, as I argue they have been in the area of environmental law, then the courts would appear to further neither the values of administrative law nor the values of environmental law.

To reassert its role as the nation’s lawmaker, Congress can place bumpers on how courts approach judicial review. Absent such a move, the power created by ambiguity will continue to flow to courts. On its surface this claim may seem at odds with the Chevron doctrine, which provides agencies deference for reasonable interpretations of otherwise ambiguous statutory text. But recall that the Chevron doctrine and exceptions to the doctrine are created by courts. So even when courts defer to agency expertise, they are in control of how and when to defer.

Relatedly, courts determine the methodology for statutory interpretation. They decide how much weight to give purpose statements as they wrestle with the meaning of detailed statutory phrases. In this and other ways, courts decide whether text is ambiguous by pulling on a menu of sometimes competing canons of construction. As evidenced by the Supreme Court’s decision in West Virginia v. EPA, all this adds up to a world where courts have the ability to direct the flow of power by creating ways to question congressional intent and find ambiguity in text. Even when the law is clear but there are questions about how an agency applied the law to the facts, unless the standard of review is crisp courts have the power to decide for themselves the degree to which they will hold agencies to account or the amount of explanation the executive branch must provide for its decisions to be upheld.

To be clear, Congress does not have the power to recalibrate the balance between administrative and environmental law in all respects. The Supreme Court’s strategic tethering of administrative law to Article III standing and to more general principles of separation of powers amplifies the power of the judiciary and reduces the ability of Congress to set entirely new boundaries for review through statute. Still, it is well within Congress’s authority to set standards of review and the presumptions to be applied. Congress could certainly provide a more directed set of instructions that place a thumb on the scale of environmental law values, like instructing courts to give greater primacy to the driving purpose of individual statutes or require more searching review when agencies use scientific uncertainty as a reason for inaction.

To sum up so far: there are three main contentions behind this call for passage of an Environmental Judicial Review Act. One, environmental law is necessary. Two, Congress has said as much. Three, the courts have either missed the point, ignored it, or wantonly devalued it. Any one of these converging contentions may be a plausibly strong basis for trying what I am offering here. In other words, unless one believes environmental laws are not important as a moral issue or issue of national survival, unless one is not concerned about congressional intent stated in legislative text, and unless one believes that administrative law is currently operating in balance with the substantive mandates of relevant statutes, it is worth considering how the role of courts in upholding environmental laws can be approached differently and with more care.

Call the new law what you wish, assuming Congress is willing to reclaim its voice in environmental law, what would such an enactment look like?

At a minimum, one would expect Congress to instruct courts to read the statute in the context of the enacted purpose statements. Similarly, Congress might codify use of the “whole act” rule, a canon of construction that recognizes that statutory phrases “should not be read in isolation,” but rather in the context of the statute as a whole. Senator Orrin Hatch once remarked that “text without context often invites confusion and judicial adventurism.” Directing courts to take account of a statute’s foundational purpose, especially when that purpose is expressly written into the legislative text, would provide context and avoid adventurism.

In addition, Congress could support the precautionary aims of environmental law more directly by requiring greater scrutiny in certain situations. Not only should Congress direct courts to demand more robust explanation when agencies use scientific uncertainty as justifications for inaction, but also scrutiny might be appropriate when agencies choose less-protective measures among a range of reasonably available options. This approach gives arbitrary-and-capricious review more shape as applied to environmental law, responding to the observations that scholars like Holly Doremus and Wendy Wagner have made at the intersection of law and science. This is not to say that agencies would be required to regulate in the face of uncertainty or choose the most protective option, but just that less protective choices or decisions using science as a shield for inaction be rigorously defended.

In the end, the main point is that Congress has power to ensure courts are upholding the bold visions of environmental law. For too long courts have been allowed to shape administrative law and by extension environmental law in ways that cause instability and a lack of progress. To chart a better path, Congress can reclaim its voice by enacting a crosscutting statute that tailors judicial review to fit the animating public-minded and precautionary values of environmental law. In doing so, Congress would check the power that courts have claimed in shaping how environmental law protects the public welfare. TEF

CROSS-EXAMINATION The courts have taken over environmental law, sidestepping congressional intent and diminishing the statutes’ strong public-minded values—instead allowing administrative law to play an outsized role in shaping environmental policy.

When Only Congress Can, It Can't

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Author

Stephen R. Dujack - Environmental Law Institute

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2022

Issue

I didn’t know when I became editor of the Forum that the era of landmark environmental lawmaking was almost over—with some exceptions that I will duly note. The year was 1990, and the buzz was all about new amendments to the Clean Air Act that would address the scourge of acid rain through the first large-scale test of emissions trading. It was the kind of legislation that is so desperately needed today to address the climate crisis by moving the United States to a renewable energy economy—a monumental task requiring a comprehensive, nation-wide approach.

Which is why the Inflation Reduction Act signed by President Biden in August is such a big deal. Unfortunately, however, the measure failed to achieve the 60-vote threshold for most legislation in the Senate—it was passed using the reconciliation system that allows bills to succeed by a simple majority if they only concern budgetary matters. While the new law promises to rapidly move the economy toward renewable energy, it lacks the breadth of approach in a true environmental law like the Clean Air Act, one that would require a bipartisan effort.

From the perspective of three decades beyond the signing of the CAA Amendments, environmental lawmaking can be divided into three general eras, speaking loosely. The 1970s was the decade in which all the major statutes were passed. The 1980s was a time of reauthorization, revamping, and strengthening. That ended with the Clean Air Act Amendments of 1990. Finally, there has been the period of more than three decades where with some exceptions the action on the major statutes has shifted from sausage-making to implementation.

Before I became editor, there was a tradition in the Forum of showing bills in progress via a cartoon depicting a horse race. Thus in 1984 there might be one horse labeled RCRA, another labeled CWA, or ESA, etc., generally a half dozen in progress. When the CAA amendments passed in 1990, on my watch, we heralded the event with a cartoon on the cover showing a horse collapsed on the finish line, burdened by all the stakeholders riding on its back. Little did I realize at the time, but the metaphor was dead—no longer would we see multiple major environmental bills in the Congress at the same time.

Immediately afterwards, there was talk of reauthorizing the Clean Water Act, and the Forum took note by organizing one of our Debates on what revamped legislation might do, bringing together the EPA Water Office with key stakeholders. The same then for the Resource Conservation and Recovery Act and the division of EPA then known as OSWER. But neither legislative proposal was taken seriously.

It is important to note the exceptions in this period of legislative drought: two minor statutes and a major one. In 1996 the Safe Drinking Water Act was revamped. It required cost-benefit analysis, satisfying conservatives. The same year, the Food Quality Protection Act was signed. It replaced the zero-tolerance Delaney Clause for carcinogenic residues in food. And Congress amended the Toxic Substances Control Act in 2016, succeeding in large part because the existing legislation was so bad, uniting stakeholders.

Why has Congress been silent on all the other major environmental legislation, and for more than 30 years? The answer is the anti-government revolution that took over the Republican Party with the election of Ronald Reagan in 1980. In his first inaugural address, the new president declared the government as the source of our national disquiet, and the GOP has been largely opposed to government’s role in Americans’ economic lives ever since.

The Reagan Revolution did not happen overnight. In fact, as mentioned above, there was a whole decade of strengthening environmental law following his inaugural. EPA had more employees and a larger budget at the end of the Reagan administration than at the start.

The change happened shortly after the CAA amendments were passed in 1990, a last gasp of bipartisanship on a major economic issue. Ever since then, thwarting the opposition seems to be the main strategy, and that leaves the environment usually sitting on the sidelines. The party-line vote has replaced bipartisan consensus—the hallmark of all the major environmental laws. And the filibuster means that major legislation is nearly impossible—both branches need to be in the hands of the same party, including at least 60 seats in the Senate, which rarely happens.

The failure of the 2009 Waxman-Markey climate legislation during the Obama era—it would have established a cap-and-trade system for carbon, modeled after the acid rain program—is a stark example of Congress’s inability to address compelling, large-scale environmental problems through a comprehensive, economy-wide program. That leaves any president only regulatory solutions that are often legally vulnerable, or in the case of the new Inflation Reduction Act, with measures restricted to finessing the budget.

In that regard, in its term-ending decision in West Virginia v. EPA, the Supreme Court nixed an EPA climate rule, declaring that major economic questions cannot be addressed by regulatory agencies without specific congressional consent. And that consent is hard to come by in our present system.

—Stephen R. Dujack

A Wonderful World

Twenty-five years before Silent Spring, Rachel Carson published her first essay in The Atlantic on the wonders of ocean life. Titled “Undersea,” the piece showcased Carson’s “commitment to making the reader feel something,” reports Anelise Chen in the same magazine 85 years later.

“Who has known the ocean? Neither you nor I, with our earth-bound senses,” Carson begins her essay. “To sense this world of waters known to the creatures of the sea we must shed our human perceptions of length and breadth and time and place, and enter vicariously into a universe of all-pervading water.”

Elegant and majestic, Carson’s moving descriptions of sea life and its habitats, and her subsequent trilogy of books on the sea, epitomized her “deep conviction that wonder had to be at the foundation of any relationship with nature,” writes Chen. So urgently did Carson seek to inspire wonder that she eventually published a book on the very subject, A Sense of Wonder.

Carson’s insistence on wonder has since been backed by psychology research. Professor Dacher Keltner at the University of California, Berkeley, found that experiencing awe—just a few rungs up on the emotional ladder from wonder—helps people feel happier and less anxious. Whether through connecting with nature or gazing into a starry sky, reaching a state of awe makes people feel more connected to others, and more willing to make sacrifices for the greater good.

Yet Keltner also warns that “our culture today is awe-deprived.” As a result of spending “more and more time working and commuting and less time outdoors and with other people,” he wrote in 2015, “people have become more individualistic, more self-focused, more materialistic, and less connected to others.”

The botanist and writer Robin Wall Kimmerer argues modern technology plays a role, with devices distracting us from the small wonders all around. “Have we become dismissive of what takes no technology but only time and patience to perceive?”

Chen lays out even more severe consequences. “Rather than stopping someplace to get to know its rhythms and cycles, we sever and uproot ourselves by living through screens and portals. All of this helps maintain the harmful illusion that if one environment gets destroyed, there will always be some other ‘away’ to escape into.”

Today, Carson’s message on the importance of wonder rings more true than ever. “Those who contemplate the beauty of the earth find reserves of strength that will endure as long as life lasts,” she writes in A Sense of Wonder. “There is something infinitely healing in the repeated refrains of nature—the assurance that dawn comes after night, and spring after the winter.”

Yet as the climate crisis alters the very seasons Carson spoke of, and warms the seas that she so painstakingly described close to a century ago, her legacy also leaves an unmistakable political footprint. “Perhaps she sensed that, without [wonder], an emotional connection with nature would be impossible,” Chen writes. “Without it, the environmental movement had no hope.”

—Akielly Hu

Notice & Comment is the editors’ page and represents the signatory’s views.

To Manage Our Forests Better, Follow Example of Indigenous

On May 20, the U.S. Forest Service announced a 90-day “pause” on prescribed fires. The ban, instituted after two prescribed fires escaped across control lines and caused the largest wildfire in New Mexico history, set back critical planned burns an entire year.

The Forest Service would use this time, Chief Randy Moore said in a statement, to evaluate its protocols against “the best available science” and “on-the-ground implementation.” He noted that “lessons learned and any resulting program improvements will be in place prior to resuming prescribed burning.” . . .

National conversations about fire policy often ignore the fact that millennia-old models of “best available science” and “on-the-ground-implementation” are right before our eyes: Long before U.S. bureaucrats embraced prescribed burns as a forest management tool, Indigenous stewards across the West tended woodlands by routinely removing excess vegetation, pruning trees, and setting “good fires.”

—Slate.com.

Eco-anxiety may not be the only thing fuelling your insomnia—our warming planet could also affect your ability to nod off. Kelton Minor at the University of Copenhagen, Denmark, and his colleagues analysed data from sleep-tracking wristbands worn by 48,000 people in 68 countries between 2015 and 2017. When compared with local weather data, unusually hot nights were linked to people falling asleep later, rising earlier and sleeping less. We’re already missing out on 44 hours of sleep a year, a figure that is set to worsen as climate change unfolds. —New Scientist

In an Era of Stark Major Questions, Congress Remains on the Sidelines.

Counter-Reformation: Redeeming the Administrative State

Read more about Counter-Reformation: Redeeming the Administrative State

Author

G. Tracy Mehan III - Scalia Law School, George Mason University

Scalia Law School, George Mason University

Current Issue

July-August 2021

Issue

The heretics, recently inside the cathedral of the administrative state, were just barely excommunicated in the 2020 election. The Trump administration did not cotton to social, economic, or environmental regulation that it deemed inimical to its plans to revive the economy. To the outrage of some, the president issued executive orders to repeal two regulations for every new one promulgated and mandating, in effect, a regulatory budget for the federal Leviathan, something Congress has not legislated given its historic aversion to facing trade-offs.

Conservatives, and libertarians such as those at the Competitive Enterprise Institute, rail against the “Ten Thousand Commandments” and the “hidden tax” of America’s regulatory state. CEI argues that the aggregate cost of federal regulation is more than $1.9 trillion annually, the cost to each U.S. household exceeding $14,000 annually on average. This is 18 percent of the average pre-tax household budget, second only to housing.

While the Trump administration accounted for fewer pages in the Federal Register than Obama’s, it still averaged 66,490 pages per year versus 80,420, according to CEI.

A more ominous development for defenders of the administrative state, several justices on the Supreme Court are harboring heretical thoughts and writing openly about restricting deference to regulatory agencies, even policing congressional delegation of regulatory authority they deem overbroad.

A counter-reformation has emerged from defenders of administrative law and cost-benefit analysis, the latter having fallen out of favor among some on the political Right.

In Law & Leviathan: Redeeming the Administrative State, Harvard Law professors Cass R. Sunstein and Adrian Vermeule seek to reassure legal and judicial critics of federal agencies and regulation who “converge, above all, on one major concern: that the administrative state threatens the rule of law.” They concur with many of the usual defenses of administrative law and agencies, such as the validity of congressional authorizations and market failures. Nevertheless, “neither of us believes that the status quo is perfect; we might favor quite significant reforms, while not always agreeing on the forms they should take.”

Sunstein and Vermeule offer the critics of Leviathan “a structure that can transcend the current debates and provide a unifying framework for accommodating a variety of first-order views, with an eye to promoting the common good and helping to identify a path forward amid intense disagreements on fundamental issues.” They share the optimism of Justice Robert Jackson regarding the success of the Administrative Procedure Act, who, writing for the Supreme Court in Wong Yang Sung v. McGrath in 1950, stated that this statute, after “a long period of study and strife,” “settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.”

Moreover, “it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the act warrant, to give effect to its remedial purposes where the evils it was aimed at appear.”

Sunstein and Vermeule describe the development of a body of judge-made law, without clear constitutional or statutory grounding, which has evolved over the years, yielding principles which they deem “the internal morality of administrative law.” For example, agencies must follow their own rules; courts should disfavor retroactive rulemaking absent clear congressional intent. Courts and judges have posited “surrogate safeguards” to secure the rule of law for those subject to regulation without undermining the basic legitimacy of administrative law.

In the authors’ view, this is exactly the approach the Roberts Court has pursued as it has declined to overturn either Auer or Chevron deference and come no where close to reviving the non-delegation doctrine despite musings by some justices. They have made some doctrinal adjustments, leaving underlying principles intact.

Sunstein is a liberal but also a strong proponent of cost-benefit analysis as befitting a former director of OMB’s Office of Information and Regulatory Affairs in the Obama years. He even tried to say something nice about the Trump administration’s “silly” executive orders on regulatory reform, which he thought could be re-worked into useful form. He is also a promoter of the “nudge” theory of social policy, a more light-handed approach to welfare.

Vermeule, an expert in administrative law, is a convert, an ultra-montane Catholic and an Integralist (a proponent of papal authority) who, at a 2018 conference at Notre Dame, opined, “We mustn’t confuse accommodation [with America’s liberal regime] for something to celebrate.”

In a slightly discordant note, Sunstein and Vermeule label originalist, textualist, and historical critics of administrative law, the very people with whom they seek common ground, as practitioners of the “New Coke,” an ironic reference to the famous common law judge, Edward Coke, who opposed Stuart despotism in England.

The authors concede the sources are “murky” for these legal safeguards, or body of federal, judge-made law, discounting even the Due Process Clause as one. They seek to make a case of “judicial intuitions” as the origin of a new kind of law grounded in, or at least consonant with, the teaching of the famous Harvard Law professor Lon Fuller, who criticized legal positivism and argued for a form of natural law theory focused on procedural rules. By the way, the authors studiously avoid the term “natural law,” but it is obvious to anyone familiar with that school of thought, that that is what is being described here.

In Fuller’s most famous work, The Morality of Law (1964), he outlined eight ways the law may fail or run afoul of the rule or morality of law, what Sunstein and Vermeule call the “Fullerian intuition.” As summarized by the authors, these include the failure to make rules in the first place, failure of transparency, abuse of retroactivity, failure to make understandable rules, requiring people to do things they lack the power to do, frequent changes in rules, and a mismatch between rules as announced and as administered.

“In our view, the morality of administrative law is something to celebrate,” conclude professors Sunstein and Vermeule — hoping the New Cokers will come around to accepting a second-best solution to their concerns.

Certainly, absent the development of this Fullerian case law, things would be much worse for regulated parties.

Professors Michael Livermore and Richard Revesz celebrate cost-benefit analysis in Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health, hoping to gain lost ground with Republicans and populists, as well as “Republican elites,” whom they used to consider supporters of the practice. They are reacting to what they consider the apostasy of the more populist Trump administration. This book complements their 2008 book, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, in which they sought “to intervene in what we believed was a stale debate between conservatives and progressives over the use of cost-benefit analysis in government decisionmaking.” Indeed, “the progressive opposition to cost-benefit analysis was ineffective and counterproductive.”

Livermore, he of the University of Virginia Law School, and Revesz of New York University School of Law, both recognized experts in the field, have come to bury Trump and not to praise him. The book focuses mostly on health and climate issues. Waters of the United States, for instance, does not appear in the index. Co-benefits, indirect benefits, social cost of carbon, domestic-only benefits, and many other issues are discussed in counterpoint to the positions of the previous administration.

No doubt Fullerian morality and cost-benefit analysis have greatly improved regulatory policy and law in the United States over the decades. But is that the end of the story? Jonathan Adler, another legal scholar, often asks, What are the opportunity costs of regulation? Try this thought experiment: Can we, for instance, afford an infinite or unlimited number of cost-beneficial rules? A prior judgment, a prudential judgment, legislative or executive, must be made before undertaking to regulate even before applying corrective practices such as cost-benefit analysis or judicial intuition. Often lost in this discussion, although no fault, certainly, of the proponents of the “New Coke,” is the liberty interest of the citizenry.

In his classic study Democracy in America, Alexis de Tocqueville described “What Kind of Despotism Democratic Nations Have To Fear.” There he provided the prescient warning against overweening regulation: “Thus, after taking each individual by turns in its powerful hands and kneading him as it likes, the sovereign extends its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.” And Tocqueville never read the Federal Register.

Donald Trump, love him or hate him, did not lose re-election because of his regulatory reform or rollback program (choose your own term). It may be one of the reasons why the election was so close. Supporters of reasonable regulation should keep that in mind going forward if the legitimacy of the administrative state is to be restored.

G. Tracy Mehan III was assistant administrator for water at EPA (2001-2003). He is an adjunct professor at Scalia Law School, George Mason University. He may be reached at gtracymehan@gmail.com.

On The Administrative State.

Crafting a Climate-Oriented Stimulus Recovery Program

Read more about Crafting a Climate-Oriented Stimulus Recovery Program

Author

Joseph E. Aldy - Harvard Kennedy School

Harvard Kennedy School

Current Issue

September-October 2020

Issue

The COVID-19 pandemic has caused the U.S. unemployment rate to reach levels last experienced during the Great Depression. The shock’s adverse impacts on households, businesses, and state and local governments will likely persist for years beyond the public health crisis. Economic stimulus and recovery programs will be key to bringing the unemployed back to work and deploying capital.

Economists, energy experts, and some political leaders have called for climate change-oriented investments in economic recovery efforts. The International Monetary Fund emphasized the importance of a “green recovery” and the International Energy Agency argued for putting “clean energy at the heart of stimulus plans.” In July, presidential candidate Joe Biden proposed $2 trillion in spending on clean energy and climate-related infrastructure.

The development of recovery efforts can benefit from the lessons learned from the programs addressing the Great Recession, which included about $100 billion in clean energy spending and tax credits. These experiences driving major investments in renewable energy, energy efficiency, the grid, and transportation provide four key insights for future policy design.

First, administratively simple spending policies with little or no political discretion — such as investment tax credits and grants as well as production tax credits for renewable power — can quickly drive clean energy investment. Wind and solar power capacity today are 4 and 100 times greater, respectively, than they were in 2008. This reflects both accelerated buildout of these technologies under the 2009 Recovery Act’s tax and grant programs, and the positive effect such investment has had in driving down technology costs.

Second, the clean energy package was designed to leverage other sources of finance, but this is a double-edged sword. When successful, clean energy tax credits attracted more private financing of renewable power, which amplifies their stimulus impacts. The challenge lies in those cases when leveraging requires partners who later abandon the project. Several high-speed rail projects failed to move forward when governors opted against their state’s participation. Commercial-scale demonstration of carbon capture and storage technology did not move forward when a coalition of utilities would not satisfy the cost-sharing requirements.

Third, driving change in the energy system and creating new jobs requires effective targeting of policies. Poorly designed programs may invest in efforts that would have happened anyway. For example, Sébastien Houde and I found that about 90 percent of the households that claimed a rebate for buying an EnergyStar-rated refrigerator would have done so without the Recovery Act’s rebate program.

Finally, there are potential pitfalls in clean energy programs with government discretion. The Department of Energy loan guarantee program became notorious in the case of Solyndra, a solar manufacturing company that defaulted. This program moved more slowly than automatic programs, such as tax credits and investment grants, and by the time it sunset in late 2011, it had used less than one-third of its initial appropriation to support clean energy innovation. The discretionary nature of the program made it a political lightning rod, even though it represented less than 2 percent of clean energy spending in the Recovery Act.

In considering these lessons, one should also recognize how the current circumstances differ from 2009. A decade ago, the climate-oriented spending in the Recovery Act focused almost entirely on clean energy investments, reflecting an emission mitigation approach to climate change. Over the past decade, global greenhouse gas emissions have increased, and serious climate change damages have become more likely. To reduce exposure to climate change shocks, future public spending should also facilitate adaptation and resilience to a changing world.

The policy landscape is also considerably more complex today than in 2009. State carbon dioxide cap-and-trade programs and renewable power mandates create incentives for deploying clean energy. The prospect of future federal climate policy — such as Clean Air Act regulations, a carbon tax, or a national clean energy standard — would also drive investment in climate-friendly technologies. The challenge for stimulus lies in crafting programs that complement and accelerate the investment that would already occur under these existing and future policies.

Finally, historically low-interest rates — effectively negative inflation-adjusted government borrowing rates over 30 years — imply significantly lower costs to finance recovery programs today compared to a decade ago. The low borrowing costs coupled with the dire economic conditions we are encountering justify historically large economic recovery efforts. Moreover, this low-interest rate environment would enable a longer-term, climate-oriented public spending program.

Crafting a Climate-Oriented Stimulus Recovery Program.

A Common Table

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Author

Brian Deese - Kennedy School of Government

Daniel Hornung - Yale Law School

Ali Zaidi - Stanford University

Kennedy School of Government

Yale Law School

Stanford University

Current Issue

November-December 2017

Issue

In 2018, Congress must reauthorize the Farm Bill. Even in a polarized Washington, the measure represents a unique opportunity to bring disparate parties together to help the sector achieve meaningful reductions in carbon emissions and boost rural economic opportunity

The new Farm Bill that will occupy Washington next year presents a unique chance to make progress on two critical issues: addressing climate change and enhancing economic opportunity for America’s farmers, foresters, and ranchers. Congress should lift its sights and consider new and aggressive ideas to reward and incentivize these businesses for taking advantage of market and technology innovations that utilize the carbon-reduction potential of the U.S. agricultural sector.

This article makes the case for why it is both economically wise and politically practicable for Congress to take this approach, by establishing a major new reverse-auction payment mechanism for agricultural enterprises that undertake cost-effective carbon reduction and storage measures on their land. If done right, this approach could help spur a new “carbon farming” industry by establishing a robust and rigorous agricultural marketplace in the United States for the chemical that combines with oxygen to form the most common greenhouse gas. At the same time, Congress should significantly scale up the federal agricultural research and development budget, to encourage greater innovation in the farm sector with a focus on improving productivity and resilience, producing more on fewer acres, increasing potential revenue to landowners, and keeping America competitive in global agriculture markets.

There are at least three reasons why the timing for progress on carbon reduction in the agricultural sector is ripe.

First, the agricultural sector provides carbon reduction opportunities that work. To understand how, take one example: soil tends to naturally contain and store organic matter. Various agricultural practices including intensive tillage that exposes soil to air can release carbon dioxide to the atmosphere.

Yet modest changes can yield a different result: through a variety of activities such as no-till or reduced-till agriculture — when seeds are drilled directly through crop residues into untouched soil — more carbon remains in the ground rather than in the atmosphere. Other farming practices with similar effect include the use of cover crops and residue management, planting field borders and other areas with perennial grasses and other native plants, and bolstering crop rotations with carbon storage in mind. There are also many additional opportunities beyond cropland that can increase carbon on working agricultural land, including for example sustainably managing grazing practices on pasture and rangeland, integrating more trees into field borders and stream banks, and restoring forests on marginal lands.

And it turns out that these types of land-sector carbon-reducing practices are not only feasible, but quite cost effective. Last year, the United States released a Mid-Century Strategy for Deep Decarbonization, which was designed “not to predict near-term policymaking [or] model the future U.S. energy and land sectors with precision . . . but rather to describe key opportunities and challenges . . . and highlight findings that are robust across scenarios.” One such finding was the continued and enhanced role of the U.S. land sector as a net carbon sink.

The MCS analysis estimated that, by 2050, land-sector and other carbon-removal technologies could sequester 30 to 50 percent of emissions across the economy, while carbon-beneficial forms of biomass could also displace fossil fuel consumption in sectors that are harder to electrify, such as aviation and heavy-duty vehicles. These reductions could take the place of reductions in the electricity sector or elsewhere that would come at a greater cost. On the other hand, in a scenario where the land sector is underutilized, the pressure to cut emissions shifts to other parts of the economy at a significantly higher cost per ton of carbon.

Second, the economic returns for farmers, foresters, and ranchers of a robust, market-based land-sector emission-reduction strategy could be significant and timely. According to the U.S. Department of Agriculture, net farm income in 2017 is down nearly 25 percent from 2015 levels. This decline reflects a growing set of structural challenges facing the U.S. farm sector. A Kansas City Federal Reserve Bank analysis found recently that American farmers are becoming “increasingly reliant on international demand and exports to support domestic prices and farm incomes,” and are challenged by “reduced farmland values,” “weaker credit conditions,” and “increased interest rates and collateral requirements.”

These trends are especially problematic given the slow rebound of employment and wages in rural areas. According to USDA, while employment in metropolitan areas exceeded its pre-recession peak by nearly 5 percent by 2016, employment in nonmetropolitan areas was still nearly 3 percent below its respective peak. Adding to the economic challenges are demographics — the average American farmer is 58 years old, nearly the oldest out of all U.S. professions. New revenues, markets, and skilled jobs are needed to attract the next generation of landowners and managers.

Together, these economic factors reinforce the need for economically efficient policies that help the agricultural center modernize and improve financial returns for farmers, foresters, and ranchers.

Third, the United States is falling behind in the global race for the type of technology-enabled progress in agriculture that carbon farming and sustainable land-sector management represent. The types of R&D that increase agricultural productivity also tend to decrease agricultural carbon intensity, while freeing land to support more forests, biomass production, or high-value natural areas. For example, precision agriculture, which can depend on greater utilization of sensors, drones, big data, and automation, can seed huge carbon reductions — just as it boosts farm productivity overall.

Despite this potential, public agricultural R&D investment in the United States has fallen in real terms over the last decade and a half and has fallen considerably as a share of total public R&D spending in the United States over a longer period. While private agricultural R&D investment has grown in recent years, private R&D dollars are not a substitute for the publicly funded basic research that drives innovation advances.

In 2015, USDA’s Economic Research Service modeled scenarios with different levels of public investment and found that slowdowns in support lead to a significant innovation gap within two decades. Specifically, if the current approach to public investment persists, the growth of agricultural total factor productivity drops dramatically — by almost 40 percent. The analysis concluded that, once depressed, such productivity will be significantly harder to make up by too-little, too-late investments in R&D.

While the United States is slowing down on agricultural R&D, others are not. Over roughly the last two decades, the U.S. share of public investment by major countries in agricultural R&D “fell from 22.5 percent to 13.4 percent.” In particular, the United States has fallen behind Chinese public investment in agricultural science. According to USDA, China passed the United States in public investment in 2008 and has kept focused on the field — following what historically has been a uniquely American playbook. Between 1990 and 2013, Chinese public investment in agricultural R&D grew eight-fold. As a result, U.S. leadership on technology-enabled agriculture is faltering at a moment when the global agricultural market is poised to grow dramatically.

Fortunately, there is a way to simultaneously address these climate, economic, and innovation challenges.

Economists have long acknowledged that the most economically efficient way to reduce greenhouse emissions is to place an economy-wide price on carbon. Modeling suggests the American land sector has the potential to deliver up to 1.2 billion metric tons of carbon dioxide equivalent reductions annually in a $40-per-ton carbon-reduction scenario, similar to anticipated reductions in the energy sector. This underscores the fact that there are clear, cost-effective emissions reductions to be gained from the land sector if appropriate policy mechanisms are in place to drive them. It also reinforces that, in the current environment, where the United States has no economy-wide carbon price and there is no effective nationwide market for land-sector carbon offsets, we are under-incentivizing land-based sequestration activities.

In the absence of an economy-wide policy, the most scalable approach would be to create a new, nationwide program of direct payments and credits to producers who effectively sequester and store carbon. This approach could be implemented in two ways. In states that have established carbon markets, sequestration policies in the land sector can offset carbon emissions reduction obligations of energy-sector entities. California, for example, already allows 8 percent of carbon compliance to come from offsets, including from agriculture.

Such a pay-for-performance model could also be implemented by the federal government — kickstarting action in states that don’t have economy-wide carbon prices and increasing ambition in states that do. Specifically, the federal government could run reverse auctions to make carbon payments to carbon-sequestering projects, using mandatory funds authorized through the Farm Bill.

Such a model is not without precedent. Australia, for example, has a voluntary carbon offset program for farmers called the Carbon Farming Initiative, which after its first years of implementation was rolled into an economy-wide carbon-pricing scheme. Under the CFI, farmers can earn credits for activities like “reducing livestock emissions, increasing efficiency of fertilizer use, enhancing carbon in agricultural soil [and] storing carbon through revegetation and reforestation.” These credits can then be sold to other parties to meet their carbon obligations. While the CFI has been challenged by underfunding and a continuously evolving policy context, over 500 land-based projects have been registered to date, and hundreds more across on-farm energy-saving and fuel-reduction practices. We would need to design a system that works for American stakeholders, but we can learn from the experiences of other countries in launching these programs.

Narrower but analogous programs also exist in the United States. California has forestry, livestock, and rice methane offset protocols as part of its economy-wide cap-and-trade program, under which 173 projects have registered to date. At the federal level, USDA’s Environmental Quality Incentives Program provides hundreds of millions of dollars annually in financial and technical support to farmers engaging in conservation practices that “improve soil, water, plant, animal, air and related natural resources on agricultural land and non-industrial private forestland.” Although EQIP payments are not made on a carbon basis, they support many of the same practices that could qualify under a carbon-payment scheme.

One of the biggest pitfalls identified from Australia’s experience is that uncertainty regarding the availability of annual funding can distort an effectively functioning market. If farmers don’t have a long-term and significant price signal, it is harder for them to justify upfront investments in emissions reducing technologies and techniques. In the U.S. context, providing mandatory funding in the Farm Bill over a 10-year window would help address this concern and would also reduce the risk that farmers simply “pull forward” the lowest-hanging-fruit actions that would have taken place just a few years later — the problem of additionality. A certain and long-term funding source would promote efficient improvements as well as provide enough lead time to finance complementary investments.

A second challenge in establishing an effective market-based payment program is compensating carbon reductions on an apples-to-apples basis across different practices, land-sector types, and regions. Carbon-accounting rules that define eligible practices, ensure additional carbon is being stored or reduced, and provide guidance on how to ensure lasting carbon benefits, can be developed to ensure agricultural activities are being treated robustly and equally throughout the program. Many such protocols already exist in California and under voluntary credit registries like the Voluntary Carbon Standard and American Carbon Registry.

A third challenge is avoiding payments for “hot air,” or emissions reductions that would have occurred even without an offset mechanism. We know there are ways to deal with this issue. For example, in California’s rice farming protocol, farmers who voluntarily participate are required to produce emissions estimates based on historical farm area, crop yield, agricultural techniques, and other measures. They then submit records to calculate emissions reductions once they begin one or more of the three authorized management practices (dry seeding, early drainage, or alternate wetting and drying).

Over the long-term, policymakers should strive for a maximally accurate program that builds on California’s approaches by measuring actual emissions at each farm, compared against a baseline. The federal government and state governments could play an important role in providing farmers with the resources to more easily follow these measurements in real time with advanced monitoring equipment and tracking software. The next generation of carbon tracking and reporting is already under development with support from programs like USDA’s Conservation Innovation Grants.

A final concern is that applying a crediting mechanism to one sector of the economy raises the specter that you end up replacing emissions in the American agricultural sector with emissions elsewhere. This effect, known as leakage, could happen, for example, if U.S. timber prices increased because this program had the effect of decreasing U.S. timber supply and, as a result, global markets demanded more deforestation in other parts of the world, like the Amazon.

A government analysis of Australia’s CFI indicated little reason to suspect significant leakage to date in the program. However, as activities are deemed eligible or ineligible for credit under the program, potential and actual leakage should be fully analyzed and considered. If the United States enacts this program domestically, ultimately the most effective way to fully mitigate leakage risk is to bring as many countries and sectors into the fold as possible, which U.S. policymakers could work on through the existing United Nations climate change negotiations process.

While there will be some investment of time and federal resources needed to develop a reverse auction program as well as expand and strengthen the available suite of rigorous measurement protocols, these actions are critical to unlocking the full potential to reduce carbon emissions from the land sector and even sequester carbon. Within the federal government, this work should be undertaken through cooperation between the Environmental Protection Agency and USDA. Based on experiences elsewhere, however, we know that building a program that serves as a sufficient market signal, compensates emissions reductions on an apples-to-apples basis, maximizes additionality, and avoids leakage is within reach.

In addition to a new market mechanism, policymakers should use the Farm Bill to accelerate the pace of agricultural innovation by improving the techno-economics of low-carbon practices. Public investment in agricultural R&D is a key ingredient of that innovation equation — to lead globally, the United States must steadily and substantially increase USDA and other agencies’ budgets for agricultural R&D by a factor of three by 2030 and focus those efforts on advancing the technologies that will unlock new possibilities in carbon farming and sustainable land-sector management. This will allow the United States to close the public investment gap with China and reestablish itself as the go-to place for agricultural innovation.

To be sure, increasing the research budget is not sufficient. We must do so in a way that optimally promotes acceleration of innovation. The American energy R&D program provides a powerful playbook for how to build out an ecosystem for innovation. As outlined in the Mission Innovation Domestic Implementation Framework, the program is composed of four elements: “foundational mechanisms to increase breadth of knowledge within a scientific discipline”; “translational mechanisms to target incremental improvements along defined tech-roadmaps”; “disruptive mechanisms to validate high-risk, high-reward, off-roadmap ideas”; and “integrational mechanisms to facilitate collaboration across disciplines and stakeholders.” Our increased public investment in agricultural R&D needs to tend to each of these components within the agricultural ecosystem.

Fortunately, significant progress has already occurred. For example, USDA supports land-grant universities to spur foundational R&D by enlisting them in advancing “competitive peer-reviewed research, education, and extension activities through multiple programs, including the Agriculture and Food Research Initiative.” We can bolster the effectiveness of these programs by adding resources and increasing capacity at our national laboratories to focus on agriculture-oriented missions. To facilitate translational work, USDA can define and launch a new priority research effort to channel existing and new R&D resources toward ambitious productivity and resilience goals. The department should be given the green light to increase direct work with experts in other agencies who have begun to look at these important issues in recent years.

For example, ARPA-E, the Department of Energy’s advanced-research program, has already ventured into agricultural R&D where it shared a nexus with energy. We know this approach works to bring forward disruptive technology, so we should consider formally charging ARPA-E (or a similar capacity) to undertake this work on a systematic basis to advance our agriculture goals. Additional interdisciplinary teams like the ones at DOE and NASA can work with USDA to meet our goals for 21st century agriculture.

As with any innovative policy idea during this polarized era in Washington, some will question the political economy of this reverse auction and investment proposal because it is does not fit neatly into preconceived notions of coalition building in Congress and the administration. But this ignores the new coalition that it could attract if policymakers are willing to consider this proposal on its merits: legislators who are looking for policies to reduce emissions and legislators who are looking to bolster the incomes of farmers and rural Americans, all while helping America regain a global competitive advantage in a post-Paris marketplace that is looking for ways to feed a billion more people without breaking the planet.

For that new coalition to come together, Congress should take seriously the transparent stakeholder process that will need to occur for farmers, ranchers, and foresters and the rest of rural America to buy into this program and allow it to realize its climate and economic benefits. To bring and keep all relevant stakeholders to and at the table, the revenues from the auction must function as an incentive, not a mandate. This does not just make political sense, it makes economic sense as well. The social costs of carbon are already being borne by the economy. This auction is an approach to abating those costs in an effective and efficient way.

The process must engage the diversity of actors in the land sector; it must strive to develop workable solutions that all find fair (especially with regard to baselines and measurement, monitoring, and verification); and it must work with all key parties to avoid unintended consequences. We must also leverage state-level policies that support these aims and with which farmers are already familiar, harmonize with existing state-level policies like California’s cap-and-trade program, and spur a race-to-the-top to improve state-level policy. Ultimately, for this program to work, farmers, foresters, and ranchers will need to lead the way. TEF

AMERICAN NEOGOTHIC ❧ In 2018, Congress must reauthorize the Farm Bill. Even in a polarized Washington, the measure represents a unique opportunity to bring disparate parties together to help the sector achieve meaningful reductions in carbon emissions and boost rural economic opportunity.

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