Global Warming and the Problem of Policy Innovation: Lessons from the Early Environmental Movement
Schroeder, Christopher H., Environmental Law
In this opening decade of the twenty-first century, our nation and the entire globe faces a daunting array of environmental problems. They present some steep hills to climb, with disruptive climate change looming as the largest. This Essay concentrates on that problem, but we do well to remember that this is far from the only severe environmental problem that we face. For example, the World Health Organization estimates that each day 3000 African children are dying of malaria and other water borne diseases, diseases that the Organisation for Economic Cooperation and Development (OECD) member countries have conquered but that still hold the less developed countries in a death grip. (1) If you want to gain some sympathy for why the developing economies of the world are reluctant to agree to limits on carbon emissions to help address disruptive climate change, you need look no further than their desire to raise their standard of living so that they can enjoy some of the basic indicators of well being that Americans take for granted.
The OECD countries have their own persistent problems, of course. Just take the United States. Forty years after Congress enacted the Clean Air Act (2) about 130 million Americans live in counties that are not meeting the health-based ambient air quality standards for ozone. (3) Endocrine disruptors remain perplexing; we know that persistent organic pesticides and other varieties of chemical compounds interfere with the human endocrine system, but we are still groping for reliable ways to test for and classify these environmental stressors. (4) Asthma incidents have increased despite the air being generally cleaner due to efforts under the Clean Air Act, and we are not entirely sure why. (5) The United States Environmental Protection Agency (EPA) is moving toward lowering the ambient standard for lead by nearly 90% because consensus science ties lead exposure to IQ and other cognitive defects at much lower levels than the current standard. (6) EPA's most recent assessment of the nation's water quality, based on state reported data, lists just under half of the assessed rivers and lakes as "impaired," which is EPA's lowest classification. (7) States only assessed about 19% of their rivers and 37% of their lakes, (8) so we are uncertain whether the problem is much worse than this or not--but it is probably no better.
Adequately addressing each of these problems, as well as others, may stretch beyond the existing environmental legal framework's capabilities. At the same time, however, the prospect of significantly new and innovative measures to cope with this daunting agenda seems to be quite dim. For the past twenty or thirty years the United States has been experiencing a deep partisan divide on environmental matters, (9) making constructive progress difficult to achieve. The practical political obstacles that environmental legislation confronts are often are accompanied by a theoretical explanation. The theory of public choice, very popular within the academy, sketches a view of politics and policy in which pushing environmental legislation through the legislature is practically impossible. (10) Public choice theory views legislation as a good to be sold in the political market to the highest bidder. (11) It is a marketplace skewed in favor of smaller groups of economically powerful interests who stand to lose a great deal--and hence have great reason to oppose legislation--and biased against much larger groups of individuals, each of whom has a comparatively small amount to gain. The smaller group can organize more easily, can assemble the necessary resources to fight legislative battles more easily, can contribute to legislators' campaigns more effectively, and will win all the major legislative battles waged between it and the larger, but more diffuse group. According to the public choice logic, "regulatory policy outcomes that deliver broad benefits to unorganized citizens at the expense of organized interest groups would run contrary to the theory's clear expectations. …