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Environmental Law Institute: Quigley: The Status Quo Isn’t Working

Oct 11, 2017
Press Release

The key to sustainability isn’t to restrict bad practices but to encourage good practices until they take root. We can keep reacting to problems as they emerge, or we can create a culture of responsible resource management that prevents threats from coming to pass

It seems as if every week I’m provided with focus group data telling me what voters care about, and invariably the environment is somewhere near the bottom — a far cry from the economy or jobs, which perpetually head the list. Those same opinion studies also regularly confirm Americans’ broad, bipartisan support for clean water, clean air, and clean energy. And, when immediate crises become national news, such as the Exxon Valdez oil spill, the Deepwater Horizon disaster, or the Flint, Michigan, drinking water tragedy, public concern will spike and occasionally drive political consensus for policy changes. However, between those events, the threats to our shared resources can seem less urgent than other public priorities.

It’s not surprising, then, that environmental protection and its underlying science have become so politicized. Something that should be of innate concern, given how it affects our daily lives in every way, should supersede the mundane political back-and-forth.

In a political environment such as ours, with two major parties and a high degree of partisan affiliation, it seems less important to be on the right side of an issue than it is to pick your side and defend it vehemently. If you have a clear difference with a political opponent and are able to present citizens with a choice, you may sway voters. The environmental issue becomes one to win, instead of a responsibility that needs to be upheld. The politics outrank the obligations.

Moreover, it’s easy to make the case that the environment is or should be less important than other policy priorities. It might be nice to see that snow-capped mountain every morning, but is it more important than your well-paying job? Should we really be risking our national security by not building a military base in a strategic location to save an endangered bird? The environment as an issue has been cast as at best a luxury concern and at worst a burden that leads to costly regulatory requirements that stifle innovation, eliminate jobs, and hang around the necks of small business owners, farmers, and miners. The architecture of environmental protection in the United States lends itself very well to be characterized as unhelpfully tacked on to the broader economy. It is for these reasons that when the environment becomes an issue, environmentalists have already lost.

It wasn’t always so. The industrial revolution created an unprecedented need for raw materials, but the old ways of thinking about stewardship and management didn’t evolve. Humans had never taken so much of a finite resource as to deplete it or irreparably change the place it came from. On the other side of the coin, human waste had never been so toxic or voluminous.

We all know what happened next. Bison were nearly hunted to extinction, the Cuyahoga River caught fire, Love Canal became uninhabitable, entire ecosystems were wiped out by industrial pollution, and people across the United States started suffering adverse health effects thanks to tainted air, water, and land. In response, Congress passed the most far-reaching and effective environmental legislation on the books.

The laws passed with large majorities in the 1970s and upgraded in the 1980s helped the United States achieve an acceptable sort of environmental status quo. They ensured that the lives of Americans are devoid of major environmental threats. As a result, since the first landmark laws were put into place, the environment has tended to mean local concerns. Prior to the emergence of climate change in the 1990s, environmental disasters tended to be coal-waste spills in West Virginia, tornados in the Plains, a hurricane in New Orleans, wildlife management in the West, or lead toxicity near an old industrial site in the Midwest.

These types of hyper-local environmental catastrophes have captured the imagination of Americans and played an outsized role in justifying the existence of and influencing many of our environmental laws and policies. Those feeling the direct impact of an environmental disaster will always have different concerns than someone trying to craft good and widely applicable policy. Those differences open up room for incoherence and disconnectedness on what should be a shared mission. As a result of meeting the challenge of the crisis du jour, we began to create a system of discrete laws and highly specific regulations, somewhat interrelated but mostly independent.

T  he reactive guiding principle for environmental protection, while in some ways very effective and certainly much better than nothing, is not an approach based on long-term conservation, collaboration, and stewardship principles, which would have served us better.

The current system is a patchwork, always changing to address the latest threat after it happens. A band-aid approach covering old or inadequate protections with new, updated, and more comprehensive rules inevitably draws the ire of many who feel that government regulation isn’t an efficient solution to society’s problems. As a result, environmental advocates have to continuously justify tradeoffs — sure, it will cost a few thousand jobs, we say, but it will save so many more lives — and wade into the political fray on each individual challenge. Not to mention navigating an arduous and lengthy federal rulemaking process that can move along slowly while irreparable damage is taking place. Environmental protection originalists, led by EPA Administrator Scott Pruitt, advocate a return to what they call “light-touch regulation.” In truth, this is just an irresponsible political response to corporate and ideological frustrations about the complex regulatory scheme we’ve adopted to address each new threat.

Our environmental protections are vital — it is our moral, ethical and, I will make the case, economic obligation to preserve and protect our natural heritage so we can pass it on to future generations in a pristine state. I am a staunch supporter of EPA, the president’s Council on Environmental Quality, the National Environmental Policy Act, the UN Framework Convention on Climate Change, and a whole host of other environmentally focused agencies, organizations, laws, and treaties. But there is a better way.

Our current environmental architecture is under unprecedented stress. First, it is currently being administered by a president and a cabinet without its best interests or mission at heart. It is in a sense victim to the political environment in which it was created. When the environment is an issue, sometimes the wrong side can take precedence. Drawing sides, magnifying differences, sowing discord, or scoring political points becomes the priority. Since our environmental laws are largely self-contained — each created at different times, for different purposes and essentially scaffolding on the edifice of the industry or activity they regulate — they are vulnerable to be picked off one by one.

Second, our existing environmental protections are being asked to address a challenge they were never designed to handle, one that touches all industries, all businesses, all communities, all ecosystems, and all households all at once. Climate change is an environmental issue but thinking of it that way misses the bigger picture of its true potential impacts just like thinking of environmental protections as ancillary to economic growth, as a necessary job of society but not the job of society, will eventually and inevitably limit both.

Climate change is a poverty and a justice issue. It will drive demand for electricity and fuel higher for those that can least afford to bear the increased costs and will expose some of the most vulnerable among us to asthma-attack-inducing air pollution and dangerous heat waves. Accounting for these threats must be part and parcel to any plan to address broad income inequities and climate change.

Climate change is an agriculture issue. Severe storms, heat waves, and droughts will place new pressures on farmers and strain their ability to reliably produce the crops that make up the basis of their livelihoods and our national diet. Farmers must plan for changes in the growing ranges and seasons of staple crops and the government must understand those changes when setting policy. At the same time, more than a billion people worldwide derive their main source of sustenance or income from fisheries. But as oceans acidify as a result of higher concentrations of carbon dioxide in the water, dependable fish species will die off. Local and national governments must prepare for the possibility of millions or billions of restless, hungry people.

Climate change is a national security issue. Altered weather patterns will drive mass migrations and spark conflict. The Department of Defense already regards climate change as a “conflict multiplier,” and we must include what we know about how the global environment will change in our long-term military planning.

Climate change is a tourism issue. Entire regions base their economies on visitors, but as coastlines change and natural wonders like the Great Barrier Reef, Great Lakes, Florida Everglades, or Chesapeake Bay are changed or degraded, the influx of tourists, and along with them their economic contributions, will cease. These are monies depended upon to fund schools, roads, and other public works.

Climate change is a financial issue. Pensions and other funds around the world invest in businesses and industries with significant climate exposure. From stranded assets for fossil fuel companies to disrupted supply chains for corporations of all types, there is a long list of potential hazards that could be associated with those investments which could expose investors to outsized risk. Fund managers of all types are doing their clients a disservice if they fail to account for climate change impacts in their decisions. This also extends to the responsibilities of investor advocates and regulators.

Climate change is a transportation issue. Severe storms and rising sea levels place extreme burdens on infrastructure like roads and bridges. Last summer, we saw extreme heat in Arizona ground commercial flights when air temperatures exceeded safe operating limits for planes. And as people move from changing agricultural environments to more urban environments, city planners will have to adapt to ensure Americans can get to their daily commute both safely and efficiently.

Essentially, there is no area of modern life or sector of our modern economy that is immune from the impacts of a changing climate. It comes as no surprise then that existing environmental laws have been pushed to their limits to adapt. A visitor to our country with no knowledge of the political state of play or legislative history of the past half century would undoubtedly find the rules that we use very strange. For example, the vehicle emissions standards meant to keep our air clean and healthy are predicated on California’s receiving a waiver to exceed the federal standard. The Clean Power Plan, designed to help decarbonize the power sector, was dragged through the legal ringer in large part due to a technical distinction over whether EPA could regulate emissions outside the fence line of a power plant. This visitor would no doubt find it odd that the politicization of environmental policies seems to run counter to the best interests of Americans themselves.

And it is strange. The result of the ad hoc, highly politicized way that environmental regulations come to be is that they are easily opposed and argued over and not nearly as integrated or all encompassing as they need to be to allow us to live up to our responsibility as stewards. We need to rethink our approach so that every presidential election isn’t an existential crisis for the natural world and so that even in the best of times — regardless of who sits in the Oval Office or what party has control of Congress — the system functions more effectively.

Instead the precepts of environmentalism, responsible stewardship, and forward-thinking resource management must be ingrained in the very foundation of every decision society makes. Let’s not build buildings and then figure out how to buy a little more renewable energy to power them. Let’s instead build efficient buildings that passively heat and cool themselves, that incorporate technologies to protect flying and migrating birds, that are oriented to maximize natural light and minimize the need for electricity.

Let’s not build sprawling metropolises susceptible to automobile congestion and dangerous or impassible for bicyclists and pedestrians. Let’s instead incorporate useful, efficient public transportation into the very first stages of urban planning, so we can create cleaner, more livable cities with safe, open green spaces.

Let’s stop incentivizing massive monoculture farms and plantations that destroy local ecosystems and consume an outsized share of resources like water. Let’s instead cultivate native plants, which are best suited for their given environments and perpetuate productive ecosystems that are better for the wildlife and humans that depend on them.

In all of these efforts, let’s prioritize low income and communities of color for the jobs, investments, and consumer savings they can generate. For too long these communities have borne the brunt of much of our society’s pollution, and the economic and societal benefits that come with a cleaner environment can lift up those who need it most.

What does the word sustainable mean? It’s not a synonym for the phrases environmentally friendly or green, though a person could certainly be forgiven for thinking so given the way it is commonly used. No, sustainable means replicable over the long term — it is the opposite of resource depletion and the antithesis of things like mineral extraction, chemical dumping, or the shortsighted, profit-first, consequences-be-damned approach of the last 150 years; it is the embodiment of understanding that what we leave to future generations is our lasting legacy. Their problems are our problems.

We need to ask whether the processes we initiate or administer are sustainable, how they can be performed in the long term without adversely impacting our surroundings or depleting resources that we or others depend on. That’s the question that businesses must ask themselves when evaluating every step of their supply chains. It’s the question that governments must ask when planning projects or promoting policies of all types. Crucially, it’s the question that consumers must ask when they make the product decisions that in many ways characterize their lives.

Visionaries like John Muir and Theodore Roosevelt are routinely considered hopeless dreamers, but it is their ethos that must be integrated deeply into our economy, society, and culture if we are going to achieve long-term growth. Environmentalists must realize that what they’re ultimately after isn’t policy change, regulatory reform, or better enforcement of existing regulation — it’s behavior change and the modification of basic decisionmaking processes at every level.

So how do we do it? If it were easy, we would have done it a long time ago. Instead, I’d argue that we’ve actually done a pretty poor job so far. When environmentalists recognized that convincing people to turn off all their lights all the time wasn’t a practical solution to reduce carbon pollution and instead bent over backwards to assure the general public that climate solutions come in the form of EPA regulation of business practices, not of lifestyle changes, they made a calculation. They opted for immediate solutions that seemed more attainable, but they did so at the expense of delaying the systemic, transformational change we’ll ultimately need to achieve. They opted out of creating habits and refining routines.

I can’t say that I blame them. I can’t say that I wouldn’t have done the same thing given the circumstances. I can’t even say that they were wrong. The fact is, for all the faults of our patchwork system of environmental laws and policies, we have at least started to bend the emissions curve. The United States has joined twenty other nations in de-coupling emissions from economic growth — increasing GDP while simultaneously decreasing the amount of greenhouse gasses we release — and that’s no small feat. But we must go further to address the climate crisis and to fulfill our other stewardship responsibilities. That’s going to take a large commitment to conservation principles.

Short of going back in time to the start of the industrial revolution, one policy lever that seems to hold promise is a price on carbon pollution. By ensuring that emitters pay up front for the carbon they release, but not mandating the way that entities address those releases, we can encourage innovative thinking and waste minimization. Companies would be given a choice: pay the pollution fee, invest in (as yet unproven and undoubtedly expensive) additions to existing production methods to reduce pollution such as carbon scrubbers, or make small decisions along the way to minimize costly pollution. While a carbon price is primarily focused on reducing carbon emissions, it is reasonable to conclude that encouraging businesses, government agencies, consumers, and anyone else to practice low- and no-waste thinking will also help address environmental contaminants like arsenic, NOx and SOx, nitrogen, lead, and other harmful byproducts of human society.

The key to long-term sustainability is to encourage and reward good practices until they take root as habit. It isn’t to restrict bad ones. We can keep reacting and adapting to each new threat as it emerges, or we can work to create a culture of responsible resource management that helps prevent the threats from ever coming to pass. As any good environmentalist knows, and as climate change is forcing us to confront, everything is interconnected. For example, rising temperatures and acidifying oceans reduces fish populations, which forces fishers to find alternative sources of sustenance and income. People who can’t find new jobs leave, leading to mass migrations into areas ill-equipped to handle an influx of millions — leading to conflict, violence, and extremism; which is, as we know, a threat to the entire world. One-off policies and actions that address a specific pollutant, a specific pollution source, or a specific practice at a specific time, are not an effective way to protect such a complex and all-encompassing system.

Every facet of our lives, no matter how important or pressing, can only exist within an environment capable of sustaining us. Caring for and looking after our shared home is a prerequisite for a high standard of living, economic growth, a good job, public health, reliable food, and everything else we value about modern society. However, when we allow the political rancor that has subsumed so many important issues into the realm of the environment, we risk all those things. By even granting the premise that the environment is an issue like any other, the best-case policy scenario is the piecemeal, one-off set of regulations and laws that we find ourselves with today. Instead, we need to think outside of the existing paradigm to achieve a systemic approach, which ingrains strong, conservation-minded, sustainable principles into every aspect of social, corporate, and cultural decisionmaking.

That much more robust and resilient strategy would be better insulated from the political winds of change and better suited to solving the problems we face today and tomorrow. TEF