Is Government “the Problem”?
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
4

It was 60 years ago when in his inaugural address President John F. Kennedy said, “Ask not what your country can do for you. Ask what you can do for your country.”

Kennedy then created the Peace Corps, thousands of volunteers promoting American values by helping poor countries establish the basics of health and welfare. And he formed the Agency for International Development, to recruit diplomatic professionals to serve on the ground administering U.S. assistance programs while serving as the “frontlines of defense.” Both the Corps and AID brought the message of freedom and prosperity to countries just beginning self government and market economies, countering the entreaties of the Eastern Bloc by showcasing the American system.

This was not Kennedy’s biggest success in activist government. In 1961 he set a national goal: the United States would place a man on the Moon “before the decade is out.” Thanks to the thousands of scientists and engineers who joined the burgeoning space program at NASA, we met that deadline when Apollo 11 landed in the Sea of Tranquility in July 1969. While the whole world rejoiced, Americans had a special pride because it had been our achievement. The American public funded the government’s space program with the equivalent of $130 billion in today’s money to beat the Soviet Union in the Space Race.

Kennedy’s successor, Lyndon Johnson, also expanded government, by creating new federal obligations to the public welfare. He launched the Great Society, including Medicare and the War on Poverty. And the Civil Rights Act and Voting Rights Act, passed at his behest, put the power of the federal government behind equality for all citizens, at least on paper. Johnson’s successor, Richard Nixon, broadened government further by establishing EPA and beginning to implement Congress’s popular new pollution and resource acts.

Twenty years after Kennedy’s call to national service, Ronald Reagan turned that message on its head in his inaugural. “Government isn’t the solution to our problems. Government is the problem.” The new president espoused a philosophy of individualism and minimal government that was the token of Movement Conservatism. It was a vision based on the Founders’ fears for the loss of liberty — and in the late 20th century very much a reaction to the growth of government during and after the Depression and World War II.

But the Reagan revolution came 200 years after the Constitution was ratified, and the franchise was no longer a thinly spread population of rich White property owners interested in free commerce. Indeed, over the previous half century government had grown measurably by providing popular new services, especially in the 20 years preceding his riposte that government is the seat of society’s problems. These programs were America’s way of attacking problems collectively, through a system empowered via statute and regulation “to promote the general welfare,” as the Constitution directs.

Reagan was particularly critical of environmental protection. In doing so, he was opposing programs that were not only popular but also the essence of our constitutional government. Congress passes broad laws controlling pollution and natural resources. The executive branch implements the laws via regulation promulgated under strict groundrules. And the whole endeavor is subject to review by the courts for procedural propriety and adherence to the national charter. Reagan was opposing an effective and democratic vehicle for the common good on ideological grounds. He was also putting down people whose mission in administering those laws is called “public service.”

Not all law is good law, and government frequently errs. But Reagan’s charge was damaging to a vital institution serving American society — one that is correctable through legislation and executive order, not universal condemnation.

The Civil Service was created in 1871 to professionalize the staffing of executive branch agencies, forming a permanent government under the direction of each president’s cabinet appointees. The Civil Service had its ups and downs in replacing the spoils system, and there were numerous necessary attempts at reform. But since World War II, the expansion of government under both parties has been met with a professionalization of public service. Americans have come to expect good government and a lack of corruption in a system that is the envy of the globe.

But Reagan’s mantra persists. Indeed, the government-is-the-problem messaging has evolved over the decades — from “starve the beast” of funds via deficits; to shrinking government “till it can be drowned in the bathtub”; to the deliberate disrespecting of duly enacted statutory programs carrying out the public’s desire for services, under the
2017 executive order demanding two rules be removed for every new one.

We recently saw the appointment of anti-government antagonists to executive branch leadership positions, folks who gleefully fouled the operation of key programs despite their legal obligations. At EPA, hundreds of scientists and other specialists resigned in frustration. Scores of rules were rescinded. The assaults on the agency added up to a mugging of our effective and popular programs to reduce pollution.

Fortunately, there are still folks who believe that it is an honor to work in government, to carry out the laws, to swear allegiance to the Constitution. To them, government is a vital force for helping to realize the community’s collective imperatives and aspirations.

Notice & Comment is written by the editor and represents his views.

PROJECT PUFFIN PUFF PIECE

Thousands of birdwatchers flock to the island of Stora Karlso in Sweden to view a colony of common murres — that is, until tourism came to a standstill during the pandemic. One might expect the birds to have thrived during this sudden absence of humans. Instead, as reported by the New York Times, researchers in Sweden observed the worst breeding season ever recorded.

It turns out that white-tailed eagles, which usually steer clear of human activity, returned in droves to the island during the lull. Although not direct predators, the eagles scared off the murres, causing them to accidentally knock over eggs and leave their nests for longer periods of time.

Stories like this prove humans have inserted ourselves into delicate ecosystem dynamics in ways we may not realize. To Stephen Kress and other like-minded scientists, these human impacts mean we can’t afford to take a passive approach to wildlife conservation.

Kress is the founder of Project Puffin, a program that successfully repopulated a locally extinct colony of Atlantic puffins in Maine. As a graduate student, he learned that Egg Rock, at the time an unremarkable island, used to be a puffin breeding site before hunters drove the species away.

If humans could be responsible for single-handedly destroying a nesting site, he reasoned, couldn’t we also take responsibility for righting this wrong?

Recolonizing these nesting sites, however, required a bit of creativity. The Lacey Act and Migratory Bird Treaty Act ended illegal hunting of seabirds in the early 20th century, yet even with suitable habitats at hand, puffins and other seabirds may not return to a nesting site without social cues.

In a method now known as “social attraction,” the Project Puffin team placed wooden carved decoys of puffins and terns, audio recordings of bird calls, and mirrors around the island in an attempt to attract the native birds.

The setup naturally invited some “avian comedy” moments, as Kress puts it in his book, Project Puffin: The Improbable Quest to Bring a Beloved Seabird Back to Egg Rock. One curious tern spent four straight days peering at its reflection in a mirror and performing elaborate courtship rituals. It even retrieved a fish, cooing at its reflection as it offered the meal.

“Birds recognize that decoys are not real,” the Audubon website clarifies. Yet in the long run, the tactics worked. After nine years, puffins returned to Egg Rock, and today, over a hundred pairs nest there. Social attraction techniques have led to successful repopulations of seabirds at sites in Japan, Mexico, New Zealand, and more.

Creating wildlife preserves and waiting for “the rebalancing of nature” is not enough, Kress argues, given that humans have already induced irrevocable ripple effects onto every ecosystem we touch. Ongoing, active human impacts therefore require sustained, active wildlife management.

Luckily, creative approaches for conservation abound. Scientists from BirdLife International and the Estonian Ornithological Society recently pioneered the use of large googly eyes to deter long-tailed ducks from getting entangled in fishing nets. The “eyes’’ hang over the water like a “floating ‘Wall-E’ scarecrow,” as described by The Guardian.

Lessons from the common murres in Sweden may also help protect endangered birds. Upon finding that tourists helped minimize eagle disturbances, the researchers suggested using tourism as a conservation tool — as long as visitors don’t harm the seabirds too.

Conservation strategies should consider complex local and global factors. But if active conservation is indeed the answer, wildlife biologists and other environmental professionals seem willing to give it a try.

— Akielly Hu, Associate Editor

On Viewing Government as a Problem.

Environmental Liability

Liability for environmental harm is designed to compensate affected parties, with a particular focus on restoring or replacing injured resources and/or providing compensation for lost value. By increasing the costs for those who harm the environment, liability provisions can serve an important deterrent role, promoting compliance with laws and regulations. Liability provisions can also serve as gap-fillers, covering activities not specifically identified as illegal but nevertheless resulting in harm to the environment, livelihoods, and public health.

Do Habitat Conservation Plans Deserve Wider Implementation?
Subtitle
Visionary But Flawed Program Needs to Evolve
An All Lands, All Hands Approach
The Flapping of Butterfly Wings -- 36 Years Later
Incorporating Relevant Laws Into Planning
Bigger May Sometimes Be Better
Mapping Tech Key to Data Apps That Bust Silos
It's All About Finding the Money
It Ain't Broke but It Should Be Fixed
Author
Alejandro E. Camacho - University of California, Irvine
Jim Lyons - Department of the Interior
Lindell Marsh - Center for Collaboration in Governance
T. O'Rourke Bradford - Bureau of Reclamation
Lynn Scarlett - The Nature Conservancy
James R. Strittholt - Conservation Biology Institute
Martin Wachs - University of California
Douglas P. Wheeler - Hogan Lovells-US LLP
University of California, Irvine
Department of the Interior
Center for Collaboration in Governance
Bureau of Reclamation
The Nature Conservancy
Conservation Biology Institute
University of California
Hogan Lovells-US LLP
Current Issue
Issue
3

There are now more than 700 HCPs nationwide, with additional plans in preparation. While a number of HCPs have been based on a more conventional model of bilateral, single-project permits that merely seek to mitigate harm to listed species, the more noteworthy HCPs are landscapewide and focused on multiple species. These plans each cover hundreds if not millions of acres and even an entire state. As this concept matures, it is outgrowing the ad-hoc way in which plans have been crafted, funded, and managed.