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The moral austerity of environmental decision making Sustainability, democracy, and normative argument in policy and law
By John Martin Gilroy
Duke University Press
Chapter One Issue 1: Science as a Substitute for Moral Principle?
Science as a Substitute for Moral Principle
To ask if science can be a substitute for moral principle in determining environmental policy is to assume that moral principle is the basis for a significant number of environmental policy decisions. This is not the case.
A few decisions are made with a substantial moral component, for example, whether wilderness areas should be preserved, and to what extent the racial balance in nearby communities should influence landfill siting. Certainly, moral principle has a strong, at times even dominant, effect on positions taken by groups that are influential political players in the policy system, such as Greenpeace and the Sierra Club. Moral principle motivates some elected officials in their responses to particular policy problems, although few elected officials dare to follow moral principle when it runs counter to political, economic, or social preferences of the voters. When moral principle is explicitly considered, it is most likely to be found in the early stages of the policy process (agenda setting, problem definition, formulation, and legitimation) and less likely in the final stages(implementation and evaluation). During the implementation stage, government agencies do not indulge in broad moral principle-based decision making because that is the job of elected officials. The focus of this essay is the proper role of scientific knowledge and practical experience in the implementation stage of the environmental policy process.
In this essay, I argue first that public administrators are charged with implementing legislative policies because they have the requisite technical and scientific expertise to do so, and because the administrative process is faster and more flexible than the legislative process. Legislative guidelines often give the bureaucrats substantial discretion in implementation; bureaucrats are supposed to use their scientific expertise in shaping environmental policy. Second, I argue that explicit policy-relevant consideration of moral principles does not and should not shape bureaucratic decisions on a routine basis. The essay is written from the perspective of public administrators in the trenches of environmental policy; its concern is not with the inputs into policy decisions but rather with administrative outcomes: What are the policy goals set by the legislative process? How well have they been met? Below are some examples of implementation directions from Congress to the agencies (emphases added):
It is the intent of Congress that the Administrator [of the Environmental Protection Agency] shall carry out [the Toxic Substances Control Act] in a reasonable and prudent manner, and that the Administrator shall consider the environmental, economic, and social impact of any action the Administrator takes or proposes to take under this chapter. (15 U.S.C. 2601[c] [Toxic Substances Control Act, 1976])
The purposes of [the Endangered Species Act] are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions. (16 U.S.C. 1531[b] [Endangered Species Act of 1973])
The Congress finds that ... to serve the national interest, the renewable resource program must be based on a comprehensive assessment of present and anticipated uses, demand for, and supply of renewable resources from the Nation's public and private forests and rangelands, through analysis of environmental and economic impacts, coordination of multiple use and sustained yield opportunities ... and public participation in the development of the program. (16 U.S.C. 1600 [Forest and Rangeland Renewable Resources Planning Act of 1974])
Through the legislative process Congress has decided the larger moral questions: Should government regulate toxic substances? Should we strive to preserve endangered species? Are forest resources primarily a source of commercial timber? The public administrator is now charged with implementing these decisions, translating them into governmental actions that affect other branches of government or the citizens. Bureaucracy plays an important role throughout the policy process, but it is in implementation that bureaucracy shows its greatest influence. Although implementation may be hampered by poor policy design or a lack of commitment by policymakers, once responsibility for the policy passes to the hands of the administrators, other factors come into play; the most important of these for our purposes are administrative expertise and administrative discretion.
Administrative expertise may be defined as policy-relevant scientific information, technical know-how, and administrative experience. Scientific and technical expertise is helpful during implementation, which is difficult because it involves a number of interdependent actions that must be accomplished almost simultaneously (Mazmanian and Sabatier 1983, 22). Implementation actions include planning programs, promulgating rules and regulations, acquiring resources (e.g., money, land, personnel, equipment), monitoring, and enforcement. Administrative expertise is necessary to accomplish all of these tasks; the scientific and technical aspects of administrative expertise are especially important in crafting rules and regulations, monitoring, and enforcement. For example, bureaucrats use their technical backgrounds to judge threshold levels of lead toxicity (Connecticut Coastal Fishermen's Association v. Remington Arms Co., 989 F. 2d 1305 ), or to decide if ornamental cedar trees must be destroyed to protect the local apple crop (Miller v. Schoene, 276 U.S. 272 ).
Because bureaucrats have administrative expertise, Congress delegates broad quasi-legislative authority to administrative agencies. Although Congress may delegate very specific guidelines to the agencies and may even attach "hammer clauses" to encourage regulatory compliance (e.g., Resource Conservation and Recovery Act Amendments of 1984), usually Congress gives considerable discretion to environmental agencies to promulgate rules and regulations that have the force of law. Except for the handful of agencies that are required by statute to use formal rule-making procedures, most agencies issue rules under a relatively simple procedure (Administrative Procedure Act [APA], § 553).
Administrative discretion is essential for effective administration. Legislators cannot possibly draft legislation in the detail that is necessary for implementation. First, they lack the technical expertise that is such a powerful resource for the bureaucracy. Second, the time pressure on members of Congress is immense; even if they had the personal expertise or professional staff to hammer out the details, they cannot spare the time: they must delegate to the agencies. Third-and this is especially true in environmental administration-the rapid pace of scientific discovery and technological change would make legislation obsolete almost as soon as it was passed. Discretion compensates for changing technology. As scientific data accumulate, or drought endangers national forests, or new species are discovered, discretionary powers of administrators can accommodate the changes. The legislative process is cumbersome; it was designed that way to protect the United States from crisis management. The administrative process adjusts to new conditions more rapidly because rule making is more flexible than legislating: it rarely requires formal negotiation, administrators are not subject to the same lobbying pressures as elected officials, and there are fewer "veto points" (points at which the legislative or administrative process is permanently derailed). Discretion also gives administrators leeway to fit policy decisions to individual cases, to "humanize" the governmental process. Of course, the devil is in the details, and Congress is often willing to lay the blame for unpopular, expensive, but necessary decisions on executive agencies.
Knowledge of scientific information and practical experience not only shape agency rules and regulations, but they also succor the agencies when the agencies are drawn into federal courts to defend their actions. In fact, the courts expect agencies to make decisions on the basis of administrative expertise, and traditionally the courts defer to the agencies when their decisions are based on their scientific knowledge and administrative experience. Justice Stevens wrote for the Court in Chevron U.S.A. v. Natural Resources Defense Council, et al. (467 U.S. 837, 865): "In these cases the [EPA] Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in detailed and reasoned fashion, and the decision involves reconciling conflicting policies" (emphasis added, notes omitted).
There is little room for large debates over environmental ethics and philosophy in the discretionary activities of environmental professionals. For example, we can argue both sides of whether social justice issues ought to be part of environmental policy, but what practitioners need to know is how incorporating social justice issues will affect their existing programs' goals as well as whatever new policy goals may emerge. Practitioners are also concerned about their constituencies, their budget and staffing level, their interactions with Congress, and their long-term career prospects if the administration changes. These are not questions about moral principles.
This is not to say that public administrators are operating in a moral vacuum or that they are ethically bankrupt. They indeed have rigorous and even noble ethical principles that inform the process by which their work is done. The most persuasive approach to analyzing bureaucratic ethics relies on the Constitution, which symbolizes core regime values of the American polity such as equality, liberty, and property (Rohr 1989). Although these regime values are certainly not absolute, nor indeed are they the only possible regime values we might explore, they are salient values for the American political system. Public administrators take an oath to uphold the Constitution, not Walden, however much they may approve of the sentiments in the latter. They are free in their private lives to pursue environmental goals that differ from their professional obligations, but if they use their position as public servant to undermine government policies or effectiveness, they are being unethical.
Under the Constitution, the president is charged to "take Care that the Laws be faithfully executed" (U.S. Constitution, Art. 2, Sec. 3). To be perfectly constitutionally accurate, that charge is to the president and not to his subordinates. However, as far as we know, the Founding Fathers did not envision the administrative state. Because courts routinely invalidate administrative actions that exceed the agencies' statutory guidelines, I think it is fair to place the obligation, if not the constitutional imprimatur, on agency behavior as well as presidential actions. In the Chevron case cited above, Justice Stevens wrote: "An agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices-resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities" (457 U.S. 837, 865-66).
An executive agency that substituted its own broad policy decisions for statutory ones would be ultra vires, that is, "in excess of statutory jurisdiction, authority, or limitations" (APA § 706[c]). See, for example, Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, 449 F. 2d 1109 (D.C.Cir. 1971) (Atomic Energy Commission must fully integrate requirements of nepa into its construction and operating permit procedures), or American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490 (1981) (OSHA is within its statutory authority to promulgate a cotton dust standard that will impose significant economic losses on the industry, but OSHA has no authority to require wage protections for workers unable to comply with interim safety measures).
Philosophical debates may inform legislators (although I doubt this happens with any significant regularity), and they certainly drive much of the lobbying and other political pressures on the legislative, executive, and judicial branches of government. However, public administrators do not decide issues primarily on their personal policy preferences, however morally principled they may feel them to be, nor should they if the administrators are doing their jobs properly.
In democratic systems, it is difficult to distinguish between the public will and the public good. In an increasingly technological world where environmental problems are scientifically complex, the general public is not competent to assess risks and to propose solutions (W. Rosenbaum, 1998, 128-30). Usually, the "public" voices we hear are those of policy specialists who have the capacity to make their views known and to apply political and economic pressure to elected officials. Elected officials rarely have the scientific training to make technical assessments, but in our system of government, they have the primary responsibility for framing broad environmental policy. They may still make decisions on environmental issues without or against scientific information, but they have surrounded themselves with specialized personal and committee staff who can provide sound advice, and they have access to administrative expertise that is found in the executive agencies charged with implementing environmental decisions. Moral principle has a valuable role in many stages of the policy process, but in the implementation stage, scientific and technical information coupled with bureaucratic experience are the preferable, and ethical, basis for policy decisions.
Science Is No Substitute for Moral Principle
Science is essential to environmental policy decision making, but it is not in itself a sufficient basis for consistently appropriate (and correct) decisions. The world, for better or worse, is much more complicated and interesting than that. There are many reasons for this: (1) many environmental policy decisions involve extrascientific, explicitly moral dimensions; (2) there are many significant gaps in our scientific knowledge and decisions cannot always wait on filling those gaps; and (3) science (especially perhaps that science that ventures into the always morally active realm of human activity) is itself vulnerable to powerful political forces that are best understood, in part, on a nonscientific basis. For these reasons and others, environmental policy, and the environmental movement itself, are best understood through-and arise out of-both scientific and moral and/or political analysis.
The environmental movement itself always has been ambivalent about science-needing it, arising out of it, but critical of some of the technologies that also arise out of science and their environmental consequences. Environmentalism is, in a sense, the sociopolitical arm of the science of the environmental impacts of technological "advance" (much as conventional economics, as an ideology, is bound up with and mutually supportive of technological advance and economic expansion). Where everyday science is ordinarily specialized, environmental science has more by way of integrating dimensions and effects: its principle focus is on the unintended consequences of human activities, a research objective that demands comparisons and judgments regarding net benefits.
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