An Environmentalism for LPE: Jed Purdy’s This Land is Our Land

Conor Dwyer Reynolds – 

Grand Canyon National Park: Mather Point Pano 03Law and political economy is on a roll. The Law & Political Economy Project is about to host its inaugural conference. The Association for the Promotion of Political Economy and the Law has launched a journal dedicated to LPE scholarship. LPE student organizations at law schools across the country. After two years, this blog has generated a critical mass of LPE thinking on subjects from sex work to environmental law. And now, the movement can lay claim to its first book in the latter subject: Jed Purdy’s This Land is Our Land: The Struggle for a New Commonwealth.

This Land explores our many social crises by tracing their relationships to land. In exploring our problems, ourselves, and the earth beneath us, Purdy finds that all of it is inextricably bound together. This Land reveals that the soils of our cities are poisoned with segregation of race and class, our rivers are suffocated by debris strewn by extractive economics, and our air is infused with emissions of our collective consumption. The cause is our economy, “the way we organize our world,” a network of power which distributes resources and capabilities across the planet.

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Losing at Its Own Game: the Right Retreats from Cost-Benefit Analysis

Amy Sinden —

Over the past four decades, the right wing has painstakingly built an intellectual scheme to try to justify the weakening of regulatory public health protections on the basis of neoliberal economic theory.  But a couple of decades ago, when the EPA began to figure out how—at least sometimes—to beat them at their own game, that edifice began to crumble.  At the 2018  APPEAL conference, I presented a brief sketch of this story. More recently, I developed it in an article that appears in this month’s edition of The American Prospect.

In brief, the story goes like this:

In the 1970s, industry lobbyists and their right-wing allies, disgruntled by the wave of environmental, health, and consumer protection legislation that had just swept through Congress, latched onto an idea that had begun to kick around among conservative economists at the University of Virginia, the University of Chicago and the London School of Economics. Before government is allowed to intervene in the market with regulation, they argued, it should be made to show that the regulation can pass a cost-benefit test.  This idea began to show up in industry briefs challenging EPA’s first efforts at environmental regulation and in white papers from right-wing think tanks.  Its pedigree in neoliberal economic theory lent an air of academic legitimacy to the idea and was a perfect fit with the Right’s larger political strategy of selling the American public on laissez-faire economics.

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To Democratize Environmental Law, Let Ordinary People Decide

This post is part of our symposium on democratizing administrative law. You can find all the posts in the series here.

Conor Dwyer Reynolds

Environmental law has never felt so undemocratic. On nearly every aspect of environmental protection, the federal government is disconnected from the desires of its citizens. Despite overwhelming public support for increased government action on the environment, the Environmental Protection Agency’s workforce is shrinking, industry lobbyists increasingly regulate their former employers, and polluters face fewer and fewer inspections and criminal prosecutions. And while the majority of Americans believe climate change is an “urgent” problem the government needs to do “a lot” about, the Trump Administration proposes rules which will exacerbate greenhouse gas emissions, like its methane rollback plan.

It’s easy to feel powerless in the face of this delay and destruction. Petitions can be signed, protests can be attended, but at day’s end, those actions don’t seem to direct or decide environmental policy. Government officials do. The best most citizens can hope for is that a still-distant election will produce a friendlier administration, one that will manage to embrace our priorities despite the immense influence of industry.

There’s an irony beneath that sense of powerlessness, one that reveals a tragic flaw in modern environmental law. I want to both explore that flaw and introduce a tool from environmental law’s past that might help fix it. It’s a tool that entrusts ordinary people to decide: the jury.

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Movement Visions for a Renewed Left Politics

Amna Akbar, Sameer Ashar, and Jocelyn Simonson – 

sunriseWhen members of the Sunrise Movement confronted Senator Dianne Feinstein ten days ago, they demonstrated the renewed vitality of an old force in democratic politics: organized young people bringing bold new visions to complex social problems. In the video, we see the power of movement participants to transform how we think and dream. In times of peril and possibility, radical visions—where the scale of the vision matches the scale of the problems we face—can capture our imagination and change what we think is possible.  In this way, social movements galvanize a different kind of force in politics, one of hope and collective action rather than cynicism and alienation.  

Left social movements are both a fount of creative law-making and a means by which to hold politicians to account. From the lunch counter sit-ins of the Civil Rights Movement to the Black Panther Party’s and Young Lord Party’s Ten and Thirteen Point Programs, activists have a long history of altering our sense of what is possible, as Aziz Rana recently laid out on this blog. When we pay attention to collective forms of struggle, as Kate Andrias argues, we see how power-shifting and law-making happen from the ground up.

As Bob Hockett recently explained, the Green New Deal is the product of the Sunrise Movement’s recognition that economic injustice and environmental disaster are existential threats to our well-being. By linking issues that are typically seen in policy-making spaces as distinct, the Green New Deal reckons with the clash between human needs and capitalism’s rapacious hunger for land, labor, and resources. Rather than shrink in the face of an immense set of challenges, the Green New Deal rises. It places the transformation of our social, economic, and political order into the realm of possibility.

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Moving Environmental Politics Out of the Courts

Alyssa Battistoni— 

On the campaign trail in 2016, Donald Trump took aim at Barack Obama’s signature climate change policy, the Clean Power Plan, as a “job-killing regulation.” Trump vowed to tackle regulations “on Day One.” By March 2017, he had signed an executive order directing EPA head Scott Pruitt to review the policy.

But even before Trump was elected, over half the states in the country joined oil and gas companies in suing to overturn the Clean Power Plan in 2016, accusing the EPA of “regulatory overreach.” Now that Trump is trying to roll back the CPP, a group of seventeen different states is suing the EPA to stop it from delaying implementation of the plan. The courts may save the Obama policy yet. But the ongoing litigation battles illustrate how court-centric environmental politics have become, and the limits of legal strategies in achieving political victories.

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Just Transitions?

Sarah Krakoff –

 

“Either Way the Outlook is Dire, Especially for the Poor.” So concludes a journalist after reviewing a draft report by the International Panel on Climate Change (IPCC) on the environmental justice and human rights consequences of climate change. The 800-plus page report, which is not yet publicly available, details the effects of a 1.5 degree Celsius increase on food systems, water, shelter, infrastructure, and health. Even if countries meet their pledges under the Paris Accords (from which the U.S. withdrew under President Trump) 1.5 degrees of warming by 2030 is locked in. If countries fail to meet their commitments, the world will be well on its way to 2 degrees of warming or more.

 

“The risks to human societies … are higher with 1.5 degrees Celsius of global warming compared to today, and higher still with 2 degrees Celsius global warming compared with 1.5 degrees … These risks are greatest for people facing multiple forms of poverty, inequality and marginalization. —Draft IPCC Report, 2018

On one hand, there is nothing new about this. Environmental harms, and harms of all sorts, have disproportionate impacts on people, communities, and regions with preexisting vulnerabilities. Earthquakes, fires, floods, and drought do not themselves discriminate. But structural wealth insulates people from the ill effects of natural disasters and helps them to recover more quickly. As Mike Davis and John Mcphee have documented, albeit in distinct tones, wealth also constructs the very path of nature’s disasters, steering them away from privilege to the extent possible. Malibu’s ritzy canyon dwellers benefitted from fire suppression, and Pasadena’s craftsmen-style homes from the lassoing of the Los Angeles River, while L.A.’s population as a whole lost public spaces and healthy riparian areas. Climate change has made the unnatural inequalities of natural disasters more visible and acute, but the landscape of injustice preceded sky-rocketing greenhouse gas emissions. Laws, including environmental laws, sometimes shaped that unjust landscape, and at others did little to counter the unequal distribution of environmental and economic benefits.

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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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