Beyond Backyard Environmentalismby Charles Sabel Professor of Law, Archon Fung Assistant Professor, Bradley Karkkainen Associate Professor
When we think of environmental action, we draw upon images from the disaster of Love Canal or from A CIVIC ACTION--stories of lone activists fighting the government or some corporation against all odds. In their provocative essay, Sabel and Fung demonstrate that an effective alternative is/i>
Edited by Joshua Cohen and Joel Rogers for Boston Review
When we think of environmental action, we draw upon images from the disaster of Love Canal or from A CIVIC ACTION--stories of lone activists fighting the government or some corporation against all odds. In their provocative essay, Sabel and Fung demonstrate that an effective alternative is emerging. Before environmental disasters occur, citizen groups are collaborating with experts, business leaders, and local and federal governments to figure out what is best for their own neighborhoods. These examples point to more than successful environmental action; they represent a model of grassroots democracy we can apply to the needs of our community.
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CHARLES SABEL, ARCHON FUNG,
AND BRADLEY KARKKAINEN
While totemic species like the gray wolf and ecosystems of otherworldly beauty like Florida's Everglades grab the national spotlight, much of the painstaking work of endangered species protection, and environmentalism generally, is carried out in obscurer locales, on behalf of less-celebrated creatures. One of these is the Coachella Valley fringe-toed lizard, a small, three-eyed reptile that lives only in a harsh stretch of desert in Riverside County, California, that is threatened by development sprawling outward from Los Angeles. Even where its habitat remains, the lizard struggles for survival, able to live only in windblown sand that is neither too coarse nor too fine.
Efforts to save the lizard began in the late 1970s in a fierce, familiar battle between environmentalists and developers. Local environmentalists formed the Lizard Advisory Committee (or simply, the Lizard Club) and scored first by getting the species listed as endangered by state and federal agencies in 1980. But development continued and more desert habitat was destroyed until 1982, when environmentalists threatened to sue developers unless they replaced all of the acreage they destroyed with habitat suitable for the lizard. Developers balked and threatened to use their funds for protracted legal combat instead. When both sides realized that these strategies would lead them to gamble their futures on the vagrant jurisprudence of the Endangered Species Act, they turned to compromise, stepped beyond conventional approaches of environmental protection, and created a novel system of habitat management and species protection.
This innovation was the 1986 Coachella Valley habitat conservation plan (called the CVFTLHCP), the second of its type to be signed. Environmental groups, developers, and a cluster of local units of government agreed, under the supervision of the U.S. Fish and Wildlife Service (FWS), to set aside more than fifteen thousand acres in the lizard's habitat as a preserve. In return for withdrawing entirely from this preserve, developers were granted a waiver of strict provisions of the Endangered Species Act that would have prohibited them from building anywhere within the habitat of the fringe-toed lizard. In addition, the environmental groups, developers, and local governments agreed to monitor the lizard's condition.
Today, nearly fifteen years later, the fringe toed lizard is still struggling to survive: Recent evaluations show that the preserve is less effective than it long appeared, and new habitat restoration measures will be necessary. But the innovative combination of local goal setting and publicly accessible monitoring elaborated in the CVFTLHCP remains the lizard's best hope of survival, providing the necessary stream of timely, detailed data and operational flexibility to adjust conservation measures as conditions warrant.
The effort to save the fringe-toed lizard reverberated beyond the small patch of California desert where it began. More than 450 habitat conservation plans (HCPs) are now either in operation or in development nationally, and Coachella Valley has become a model for building them. Beyond species protection, activists and government agencies facing diverse challenges such as watershed management, ecosystem restoration, and industrial toxics have begun to overcome old antagonisms in favor of similar cooperative environmental problem solving.
This new approach grows out of a proud tradition of backyard environmentalism in which local activistsfrom Pacific Northwest forests, to Woburn and Love Canal, to California desertsfought to reclaim authority over their lived environment. These pioneers of citizen environmental activism typically sought to keep harmful activity out of their neighborhoods and beloved landshence the acronym NIMBY for Not In My Backyard. In their struggles to protect themselves and their children from poisoned air, soil, and water, ordinary citizens have often pitted themselves against certified experts from corporations, government, and even big environmental organizations.
Recent developments such as the CVFTLHCP go beyond this earlier generation in two ways. First, citizens now face the daunting task of determining what should occur in their backyards: What kinds of activity are productive yet acceptably sustainable? Second, determining what the tolerable activities are, given continuous change in the nature of risks and our understanding of how to respond to them, requires them to transform their traditionally antagonistic relationships with experts into partnerships for environmental protection. For complex challenges like saving the fringe-toed lizard or preventing pollution without job losses often demand lasting and adaptable alliances that engage both the broad experience of professional practitioners and the contextual intelligence that only citizens possess. If the lesson of the first generation of backyard environmentalism was that citizens living in threatened communities, near polluting firms, or drawing on contaminated watersheds would not be overrun by distant corporate and governmental bureaucracies, the experience of the succeeding generation teaches that citizens with their new allies can fundamentally reshape regulatory systems.
This relationship is founded on an exchange between local unitssuch as the Lizard Club, neighbors on the same tributary planning together to reduce the polluting runoff from their farms, or a team of workers and managers planning to reduce the use and leakage of toxics in their plant and higher level authoritiesa field office of the U.S. Fish and Wildlife Service, a state department of the environment, or a regional or national office of the Environmental Protection Agency (EPA). Within broad limits the local units set their own environmental performance targets and devise the means to achieve them. In return, they provide detailed reports on actual performance and possible improvements to overarching public authorities. The resulting framework replaces central command regulation with a combination of local experimentation and centralized pooling of experience. In this new architecturewe will call it a rolling-rule regimeregulators use reports on proposals and outcomes to periodically reformulate minimum performance standards, desirable targets, and paths for moving from the former to the latter. While pursuing these targets as they see best, local actors provide the information necessary for regulators to revise their standards and goals and receive information on the performance of others that guides further experimentation. Thus the new framework forces continuous improvements in both regulatory rules and environmental performance while heightening the accountability of the actors to each other and the larger public.
The rolling-rule regime should not be confused with voluntarism, if that term is understood to imply the abdication of public authority and responsibility to private actors, singly or in groups. Nor is it merely devolution of authority from the federal government to smaller units. For while the rolling-rule regime radically expands the bounds of local autonomy and demands deep participation by private as well as public actors, it also requires accountability. Central authorities ensure that local units live up to their commitments by coordinating their activities, monitoring their performance, pooling their experiences, and enforcing feasible standards that emerge from their practice. But unlike conventional, hierarchical forms, in which subordinate parts answer to the center's authoritative command, rolling-rule regulation creates a collaborative and mutual accountability of center to parts, parts to center, parts to other parts, all to the whole enterpriseand to the public generally.
This reorientation is little noticed because of the sheer improbability of its success, given current assumptions about interest-group politics and failed public institutions. Environmentalists are taken to be inveterate opponents of industrialists or real estate developers, just as officials of federal, state, and local government are taken to be natural adversaries. How can all of these cooperate continuously for the long term under rapidly shifting conditions and even more rapidly evolving knowledge of the world?
We will argue that this emergent regulatory regime owes its success precisely to a counterintuitive but durable form of practical deliberation between and among environmentalists, developers, farmers, industrialists, and officials from distinct, perhaps competing, subdivisions of government: parties who are conventionally thought to be antagonists. In this problem solving process, disciplined consideration of alternative policies leads protagonists to discover unanticipated solutions provisionally acceptable to all. Further deliberation leads to successive redefinitions of self-interest that permit robust collaborative exploration, including revision of institutional boundaries, procedures, and even ideas of what is feasible. In avoiding the notorious inflexibility of centralized command systems and the problems of information gathering associated with market-based mechanisms, the rolling-rule regime achieves levels of cooperation and environmental performance beyond the reach of either. At the limit, the practical successes of this form of deliberation in solving problems suggest the possibility of a directly deliberative form of participatory democracy in environmental regulationand elsewhere as well.
A New Architecture
We start where many of these reforms began: with the frustration of environmental activists, managers of regulated firms, ordinary citizens, and regulators with the shortcomings of centralized command regulation on one hand and at the impracticality of market-based correctives on the other.
Command and Market
The distinguishing feature of centralized regulation is its claim to a modest omniscience. Though regulators renounce the pretension to complete knowledge of a complex and changing world, they nonetheless attempt to determine enduring solutions to well-specified problems. The result of this combination of confidence and self-deprecation is regulation that, piece by piece, attempts too little and too much.
There is too little regulation in the world of centralized command because detailed regulation requires sharp boundaries between what is regulated, and what is not (otherwise, rule making would require plain old, immodest omniscience). But under complex and changing conditions, problems just outside the regulated zone will frequently turn out to be just as significant as those within it. For example, the Endangered Species Act applies only to species nearing extinction. And it is immeasurably harder to save a species once it is sufficiently imperiled to qualify than when it is merely in decline. Similarly, the Clean Water Act (CWA) regulates gross and concentrated emissions of a handful of pollutants by large and conspicuous polluters such as factories and waste treatment facilities. The more varied and diffuse effluents of households and farms, though less obvious and harder to measure, may cause greater damage overall, but remain essentially unregulated.
But where it does aim for more definitive solutions, centralized command often regulates too much. The best available solution at the moment of adoption may have long-term, unintended consequences that outweigh early gains. Or the very successes of the best current solution may hinder the search for better ones. Even when the parties to the original rule suspect that they have been overtaken by events, fear of reopening discussions may prevent them from taking advantage of new opportunities. Those who broadly speaking favor regulation worry that confessing error opens the door to backsliding and jeopardizes their authoritative claims. Those who generally oppose regulation worry that new rules may expose them to even greater costs than the old. For example, some rules prescribe the use of specific "best" technologies to trap pollutants before they are introduced into the air or waterdespite the possibility of improvements in these technologies, or the possibility that others could prevent the production of pollutants in the first place.
The 1980s brought two kinds of market-simulation proposals that promised to correct these defects. One focused on trades among polluting units. The other, cost-benefit analysis, focused on methods for analyzing the trade-offs implicit in competing regulatory proposals. Both approaches recognize that effective centralized regulation requires more knowledge than it can summon, and therefore would leave crucial choices to decentralized actors. But neither approach delivered on its promises of orderly decentralization.
To see why, consider the first and most familiar of these two proposals: to create "tradable emissions permits" that allow firms to pollute specified quantities of specified substances. In such a system, a central regulator identifies the regulated substance and establishes an overall cap on emissions based on the harm it causes and an estimate of reasonably attainable reductions. The regulator then assigns initial permit allotments to current polluters, creates trading rules and a compliance-monitoring regime, and lets the magic of the market do the rest. Polluters facing low costs of abatement will reduce their emissions and sell their excess permits at a profit to higher-cost abaters, who find it more economical to purchase permits than to make reductions themselves. As trades continue, the costs of abating a unit of pollution will stabilize around a market price. Thus every dollar spent to protect the environment from the regulated substance will ultimately buy as much protection as every other dollar, and society will achieve a goal of which the social planner can only dream: efficient allocation of the resources spent on pollution reduction.
Despite their modest claims to knowledge, market-simulating mechanisms ultimately share with centralized command regulation a demand for information they cannot satisfy. All marketsincluding those in pollution permits, water rights, and landrequire extraordinary quantities and varieties of information. Among these are precise definitions and allocations of ownership rights, costs, and other terms for their transfer, as well procedures for resetting prices or redistributing rights when initial allocations prove too generous, or too niggardly. Ordinary markets work because most of this information is amassed from decentralized actors. In artificial markets, created from the center, the information must first be accumulated (or specified) by the regulator. Before issuing permits that create these commodities, regulators must know how much of the pollutant is being emitted in the aggregate and by individual sources, how much environmental harm results from various levels of emissions, and what reductions are feasible. Moreover, because markets depend on secure ownership rights, there are limits on post hoc program corrections and thus excessive expectations of inhuman foresight from all-too-human regulators.
Nor is simple deregulation a viable alternative to centralized command or market simulation. The wave of environmentalism that produced the EPA and Clean Air and Clean Water Acts has evolved into a robust popular movement that insists on public supervision of environmental hazards. Environmentalism, as a commitment to public stewardship of the biosphere, is now a securely established political fact. The only live debate is about the appropriate level of environmental protection, and how best to achieve it.
This abiding commitment to environmental protection has begun to weave bits of the old programs and a few innovations into a novel regulatory framework. This framework discounts the possibility of central, panoramic knowledge more steeply than either centralized command or market-simulating regulation, and it puts a higher premium on collaborative processes that allow central and local actors to learn from one another and from their actions in the world. It would use these surprises to revise the rules that frame collaboration, then seek further discoveries under guidance of the more capable frame, and so on. The philosophy of this architecture is pragmatist: while it rejects immutable principles, it keeps faith with the idea that we can always institutionalize better ways of learning from the inevitable surprises that experience offers us.
The new framework embraces local autonomy and broad accountability. Local actorsfirms, local governments, local representatives of federal agencies, or representatives of all these acting together in composite entitiesare given the responsibility, subject to general guidelines, to devise suitable measures within a broad policy area, say, the management of a watershed or habitat, or the reduction of toxics. Moreover, they devise measures by which they will assess their progress toward the goals they have set and mechanisms for correcting practice in light of actual performance.
In return for this autonomy, local actors agree to pool information on their performance, plans, and metricson how they are doing, how they plan to improve, and what standards they use to assess performancetypically by reporting them to a central monitor. The central monitor uses these data, in consultation with local actors, to determine minimally acceptable levels of performance, plausible targets for improvement, generally acceptable methods for assessment, as well as acceptable and preferable methods of organizing participation in subsequent discussion of goals and measures. Interim standards and general measures become benchmarks. Referring to these, local units then reassess their own performance. Local criticism and national scrutiny discipline laggards. Local actors are accountable to one another, within any one locality, and to the nation as a whole. National institutions are exposed to the informed gaze of the collectivity of localities. The next round of experimentation takes account of the feedback from these results, and leads, through further comparisons, to revisions in the standards and measures, as well as national and local procedures. Because the emphasis throughout is on measurement, evaluation, and continuous improvement of performance, we will call this new architecture performance-based.
The performance-based framework emphasizes the continuing importance of local knowledge, and thus requires broader and deeper local participation in environmental regulation than earlier regimes contemplated as necessary. Indeed, it assumes that its predecessors failed in part because they ignored the knowledge diffused among the broader public. Its own success will therefore depend on organizing participation that systematically taps this information even as it places additional demands and confers new powers on citizens. Already, as we will see, work teams within firms are beginning to engage in pollution-reduction efforts directly linked to the reorganization of production. Similarly, as a result of growing attention to nonpointsource pollution, small farms and households whose runoff influences conditions in local tributaries are being asked to engage in (and authorized to implement) the kind of self-assessment and pollution-reduction planning once presumed to be within the reach of only large firms.
But this broader participation must also be deeper than traditional forms. Voting, comment in public hearings, or advocacy in environmental movementsthe familiar varieties of direct participationare occasions for making citizens' voices count in public decision making. In a performance-based regime, the citizen is called on not merely to express an opinion, or demand a solution, but to help formulate and implement solutions. The idea is to exercise joint responsibility, not simply to defend group interests. In this process, the new institutions may transform the identities of the users themselves. To underscore these transformative possibilities we will speak of deep use and deep users to distinguish participation and participants in the new regime from those in the old.
So the pragmatist architecture promises regulation that is more effective than are the current arrangements, and more democraticwhich sounds too good to be true. To see just how much truth there is in this promise, let's consider how things work in practice.
Excerpted from BEYOND BACKYARD ENVIRONMENTALISM by CHARLES SABEL, ARCHON FUNG, AND BRADLEY KARKKAINEN. Copyright © 2000 by Joshua Cohen and Joel Rogers. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Meet the Author
Charles Sabel is professor of law at Columbia University. Archon Fung is assistant professor at the John F. Kennedy School of Government. Bradley Karkkainen is associate professor at Columbia Law School.
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