Purdy on Economic Power in NYT and TNR

Jedediah Purdy —

This week, I published two pieces about economic power. One, an op-ed in the New York Times, distilled some major themes from the Supreme Court’s neoliberal jurisprudence: allowing private power to colonize public law (arbitration), using constitutional rights to protect economic power (First Amendment restrictions on union dues and campaign finance), and deploying federalism doctrine to block national programs of social provision (the Medicaid expansion decision). I argue basic LPE themes: public and private power are inseparable, law stitches them together, and we need to protect and reclaim a way of integrating them that empowers democracy to constrain capitalism. Today the Supreme Court is taking aggressive, creative steps to make this harder. In fact, this has been a major theme of the Roberts Court.
The other piece is a review of three new books on class. There’s a lot of twist, turn, and texture. I celebrate that they try (two of them especially, in very different ways) to describe the experience of class in a new landscape of global commodity chains, rural depopulation, and the fracking boom. I especially admire Eliza Griswold’s description of class–in which she doesn’t use the word–as a web of social and environmental vulnerabilities, ways the world is indifferent and dangerous to you. At the same time, I suggest we might also need to think about class from a different perspective: that of the bosses and owners. Their class consciousness is often arrestingly lucid, and in many ways they are the ones who make the world. And, with the next confirmation, the Roberts Court looks likely to defend the economic power of bosses and owners even more vigorously in its ongoing transformation of American law.

Environmental Trumpism at Bears Ears

Jedediah Purdy – 

The enormities keep coming. The Trump Administration is especially busy in environmental and natural resources law, where the executive branch can get a lot done without Congress.  There’s the elimination of the Clean Power Plan, the revival of offshore drilling, withdrawal from the Paris Agreement on climate change, repeal of rules to protect streams from mountaintop removal and to protect people from mercury, an overall directive to open public lands to mineral extraction wherever possible, and a proposal (scotched by FERC) to finance a giant purchase of coal reserves with utility customers’ fees. The Administration has adopted the slogan “Energy Dominance” for its policies (sub-slogan: “When energy independence isn’t enough”).

Cliff formations at Bears Ears National Monument

Environmental policy pretty well crystallizes two of the Trump Administration’s distinguishing qualities: corruption and ethno-nationalism. On the corruption tip, there’s the positive eagerness to hand over the resources of the public domain to the fossil-fuel industry and give environmental cost breaks to mining companies and everyone else. It’s as likely as not that there will be some scandals in the bidding process and so forth before this is done; but the real thing here is what Zephyr Teachout calls “structural corruption”: This Administration identifies with the extractive industries and their interests, and will happily see the world through their eyes (which is say, in keeping with their bottom lines).

As for nationalism, this Administration’s trick is to turn anything—anything—into a version of right-wing identity politics. When EPA director Scott Pruitt announced the end of the Clean Power Plan, he did it in Hazard, Kentucky, flanked by coal miners, and announced, “The war on coal is over.” The “war on coal” is a story the coal industry has been telling mining communities for a decade now: that they’re under mortal attack by liberals who don’t respect hard work and want to wipe out their way of life. Trump’s has turned extractivism into an icon of his ethno-nationalism.

These themes also intersect in a major fight over western public lands. On December 4th, 2017, Trump announced he was stripping 1.15 million acres of land, about 85% of the total area, from the Bears Ears National Monument in southern Utah. Barack Obama had created the monument just a year earlier. The same day, Trump also announced a major reduction in Grand Staircase-Escalante National Monument, in the neighboring county, which Bill Clinton created in 1996. Coal, uranium, and some oil and gas exist throughout the region, and if the change goes through it will be another symbolic stroke for Energy Dominance against the War on Energy.

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Understanding Environmental Law as Public Provision

Jedediah Purdy –

A law-and-political-economy (LPE) approach illuminates environmental law in a few ways. It highlights that environmental law is a prime example of the ways law is generative, even in areas where it is imagined as reactive, and how it channels and responds to contested values even where it is imagined as technocratic. Law does not so much administer “the natural world” as it helps to create it by shaping regions, ecosystems, and the planet – a creative action that overlaps and interpenetrates with law’s shaping of the social world, from cities and suburbs to the agricultural economy to energy and transport systems.carson-book

Environmental law’s creative role, in turn, responds to deep-seated conflicts among visions of the world and the human place in it, and to powerful concentrations of economic interests, including big agriculture, fossil fuels, and the auto industry. The environment – woven out of natural and artificial elements – distributes profoundly unequal benefits, powers, and vulnerability, and does so in ways that are often only halfway visible because they are easy to naturalize as the given shape of the world.

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