Rejoinder: Eight Misrepresentations and a Confession
Verweij, Marco, Law & Society Review
In her response to my article, Mary Durfee argues that my research, though promising, is "flawed" in its execution and rests on "incoherent biophysical science." She reaches this conclusion by misrepresenting my article in eight ways. I would like to highlight these misunderstandings before pointing out, and correcting, a real flaw in the execution of my research, which went undetected by Durfee, but which did not affect the conclusions of my study.
According to Durfee, I argue "that the adversarial culture of the United States compared to the cooperative culture in civil law nations meant that firms in Europe were more proactive in cleaning up their emissions than was the case in the United States," and that to make this point I sought to "compare chemical pollution in the Rhine to that found in the Great Lakes of North America." These opening statements contain two important misrepresentations. First, my study does not contain any claims about how environmental measures taken by "firms in Europe" fare in comparison to environmental policies of corporations "in the United States," and I do not turn my comparison between the chemical pollution of the Rhine and the Great Lakes into a decisive test for settling this grand issue. Second, my research does not compare chemicals found in the Rhine with pollutants found in the Great Lakes. My research mainly focuses on the relative toxicity of industrial effluents into the Rhine and the Great Lakes by enterprises that are located in these two watersheds. I defend this choice by pointing out that the protection of the Rhine and the restoration of the Great Lakes are widely seen as two highly successful, even exemplary, cases of water protection in their respective regions. Moreover, I embed my findings in the larger comparative literature in which similar research results are presented. But I never claim, and do not believe, that either my study or the larger literature allows one to draw any definitive conclusions about the extent to which European and American companies have engaged in environmental protection. I do not even assert in the article (or elsewhere) that the conclusions df my research on industrial effluents into the Rhine and the Great Lakes can be extrapolated to other forms of environmental degradation plaguing these two watersheds, such as pollution from agricultural sources and municipalities, or polluted sediments.
Durfee also shows her misunderstanding of my work when she writes that I claim "the International Joint Commission [has] worsened the situation in the Great Lakes." I am more careful than that. On p. 1043, I argue that the work of this Commission has "probably been beneficial" to the efforts to restore the Great Lakes watershed given the adversarial nature of the water politics of the Great Lakes watershed. However, I also point out that the Commission has contributed to the adversarial nature of the water politics of the Great Lakes in a variety of ways, the wisdom of which can be questioned on the basis of my study.
A fourth misrepresentation occurs when Durfee writes that in my view the "only relevant difference" between the Rhine countries and the United States "lies in their legal cultures (civil versus common law)." This statement comes as a surprise. In my article, I spend some fifteen pages (pp. 1029-43) summing up, and discussing, a plethora of institutional differences that have made the water politics of the Great Lakes more adversarial than those of the Rhine. I divide them into three groups: national political cultures ("American exceptionalism"), state-society arrangements, and international regimes. Under the heading "state-society arrangements," I show how differences in the relations among the executive branch, the judiciary, the legislature, business corporations, and environmental groups have all made the water politics of the Great Lakes more adversarial. Differences in legal institutions form only a small, and not overly significant, part of this analysis. …