Comments on "After Backyard Environmentalism"

Daniel J. Fiorino

Sabel, Fung, and Karkkainen have a clear fix on the six-year debate about what others are calling "civic environmentalism" or "second generation environmental policy". They describe this new form of governance accurately.

(1) This approach engages diverse citizens, community leaders, polluters, and regulators in custom-designing environmental solutions for individual places and industries.

(2) Regulators allow flexibility to businesses to redesign their products, services, and production processes to minimize environmental impacts while still making a profit.

(3) Regulators allow flexibility when the environmental results will clearly be better. They -- and the public -- demand accountability, which requires vastly improved information about environmental conditions.

(4) New technologies for monitoring environmental conditions will help provide such information, but scientists must work as peers with citizens to collect data and interpret what it means.

This is the happy half of the story. The other half is that these new ways cannot replace our regime of strictly enforced national standards. We need both the good cop of government willing to empower and support local problem-solving efforts and the bad cop of government standing ready to enforce national standards, if necessary. Often the good cop is not persuasive if there is no bad cop waiting in the next room. The challenge is how to operate a tough regulatory regime alongside flexible civic deliberation.

Sabel, Fung, and Karkainen might address more clearly three limits on civic environmentalism.

Borders: Many forms of air and water pollution cross borders. It is often difficult to get all interested parties around the negotiating table. Federal officials represent out-of-town and national interests. Recently thirty states did negotiate a remarkable agreement about interstate movement of ozone. But in the end, they asked EPA to incorporate the agreement in national regulations, and then some parties to the agreement promptly litigated the continuing points of disagreement.

Time: collaborative problem-solving is a demanding, often exhausting process. In most communities, citizens, local leaders, and businesses will keep talking only when there is a crisis and when there is a good chance of a mutually rewarding breakthrough. Often it is easier just to follow the prescriptive regulation because you can easily buy technology off the shelf to comply with the law. A multi-year study by the Natural Resources Defense Council and Dow Chemical recently uncovered dozens of ways to prevent pollution while also cutting costs. The returns on investment were excellent. But the dollars saved were so small that the company would not have bothered if NRDC had not helped out.

Money: environmental issues have a consensual element; we all like clean air and water. But sometimes environmental politics is about real differences. Often business save millions by emitting a bit more pollution. So consensual problem-solving works best when there is money to pay off the losers -- for example, tax breaks for environmental equipment or purchases of conservation easements to protect species, watersheds, or open space. To make backyard or civic environmentalism work, the federal government must not only offer regulatory flexibility but also put up cash. The Chesapeake Bay program, for example, is sustained partly by a powerful Maryland senator on the EPA appropriations subcommittee.

The trend toward civic environmentalism is unstoppable. Citizens do demand answers that fit local conditions. New monitoring technologies help supply the information needed to measure performance and ensure accountability. Twenty moderate Republican and Democrat members of Congress recently offered "Second Generation" legislative proposals, paralleling proposals in a 1997 report by the National Academy of Public Administration which says that the old EPA system is "broken". Congress seems ready to invest billions of federal budget surpluses in protecting lands and water.

But there is a long way to go. Innovations like those which Sabel et al. celebrate are still "marginal," said the Academy. Statutes offer little encouragement to customized local problem-solving. Engineers and lawyers skilled in drafting and defending detailed prescriptive regulations still dominate agencies. Indeed, since 1999 progress towards flexibility and has been slow -- perhaps slowing.

The challenge to environmental agencies and to us advocates of second generation environmental governance is to explain how to fit the good cop and the bad cop into the same system. For example, flexibility includes devolution to states, but states collect most data and need different kinds of data than federal regulators need to ensure states do not abuse flexibility. So EPA must simultaneously command and devolve.

It is liberating to uncover a new way of addressing public concerns. The enthusiastic claims of Sabel, Fung, and Karkainen have merit. Whatever its name, new forms of environmental governance will reinvigorate our republic and protect the environment more efficiently. But we must draw on multiple traditions. We can progress with a more Jacksonian spirit; (perhaps de Toqueville is a better guide). But we need Madisonian pluralism too.

Theodore J. Lowi

For an article using some simple case studies supporting a benign and, on the surface, attractive concept of "backyard environmentalism," this has been the most dense, difficult assignment since I quit trying to read German philosophy. Maybe it hurt that my version came e-mail, single spaced. But the turgidity was mostly in the prose.

If I got their drift after the third reading, it seems that the authors are arguing that we can arrive closer to a maximum of environmental protection from a nationally coordinated localism than from the traditional environmental regulation involving "hierarchical forms in which subordinate parts answer to the center's authority of command." Everyone lives happily ever after within a "new structure [that] is a collaborative and mutual accountability of center to parts, parts to center, parts to other parts, and all to the whole enterprise, and to the public generally." Yet in the very same paragraph, the authors inform us that their construct is neither voluntarism -- abdication of public authority to private actors -- nor is it devolution of authority from center to local units. Rather, the center retains the "whip hand ensuring that local units live up to their commitments." In other words, local interests, including experts as well as amateurs, NIMBY groups and selfless citizen groups, and of course the special interest groups and corporations, interact in "a new form of democracy" to set "allowable performance standards [and] desirable targets"; and then the standards they set through their participation and interaction (rules? ordinances? policies? directives?) would be enforced by that very same "authoritative command" of central government, of whose absence we had just been assured. All this is affectionately referred to as "the rolling-rule regime" -- which means we can have our central government and reject it too.

This is where I came in 35 years ago in my confrontation with the late New Deal policies and the very same squaring-of-the-circle we confront in this piece. Words and style are different, because the underlying ideology (i.e., the choir to which the authors are singing) is different. Their choir is the decadent phase of classical liberalism, whereas the choir in the 1960s to which the propagandists were singing was the decadent phase of social-democratic liberalism. But the motivation is the same -- to try to finesse the coercive nature of public authority in order to validate or embrace or make more convincing the key principle of that ideology as it goes into decline. I'd call it ideology if the singers were unaware of the meaning of the song they were singing: I called it propaganda in my title because it seems to me to be an ideology of whose meaning the authors are quite aware. The key principle of the classical liberal, laissez faire ideology is that free-market localism bordering on anarchy is the best way to serve the public interest. Again, pretend away public authority.

The authors then use case studies to give the impression of empirical support for their process. In the New Deal era, case studies were also a major means of illustrating and confirming the political system to which they were committed. Political scientists called this the analysis and presentation of "how democracy works," or "how the system functions" -- as though it did in fact function successfully, due to the principles being embraced. But the trouble is, for every supporting case study there is almost inevitably an unsupportive case study.

The same problem with case studies is even more pressing here because of the innate problem of "area and power" or "area and authority." Environmental policies almost always exist in a geographic context considerably larger than the area or principality within whose jurisdiction or boundaries the policy applies. Mancur Olson introduced us in the 60s to the intractable problem of public goods and their spillover effect by use of a fable formulated by David Hume back in 1740 about the draining of a meadow. Two morals can be drawn from Hume's fable. First, there is an innate incentive not to drain the meadow if the public or spillover benefits can be enjoyed by everyone in the vicinity regardless of whether they contribute; they can go along as "free riders." Second, if the public or spillover effects are costs rather than benefits, there is an equally strong incentive or tendency to act in concert to displace as many of the costs onto other people in other communities and other principalities, near and far.

At a minimum, these are principles leading inexorably to the conclusion that the next larger and more inclusive principality must have a superior share of authority over all backyard environmental policy decisions that are made. The authors tell us of the importance of "contextual intelligence," but they don't say what context and how (and how inclusively) it is to be defined. They say, only hopefully, that in the process of participation "ordinary citizens would become quasi-experts by imitation." And they support their discovery of this natural and spontaneous acquisition of expertise with the experience of their case study on the Chesapeake Bay Program, in which "the Program" [I assume the officials or their PR people are speaking for the Program.] "... explicitly equated participation with the emulation of expert knowledge." This is a new pedagogical method for human adult learning, copied from canines and chimpanzees, that specifically relevant and required expertise -- as well as "conceptual intelligence" and "system-level learning" -- can be acquired through mimicry. How much time does this education-through-emulation take? My answer to that question is inspired by something I learned from Shaw a long time ago that democracy will fail, because there aren't enough evenings in the week!

Even more hopeful (downright propagandistic) is the authors' report on the Massachusetts case, which involved the broadening of the federal "right-to-know" requirement nationwide that the 30,000 private and government-run facilities which meet statutory size requirements must report estimates of the amount of [around 650] chemicals that are transferred off-site or are routinely or accidentally released. In 1989, Massachusetts expanded on the federal requirements to include "use or generation of toxics in any stage of production." However, as with the federal program, although the Massachusetts law set the ambitious goal of 50 percent reduction by 1997 and provided for penalties for "willful" violations of the reporting requirements, it provided no penalties for failure to act on the reduction plans that were formulated. The goals were to be achieved by an "obligation for self-monitoring to induce firms and citizens to acquire information that reveals problems and possibilities for their solution."

On the basis of this program, and all the observed participation and emulation and spontaneously acquired knowledge, the authors proceed to claim that there is "substantial evidence ... that this apparatus works." In the five years between 1990 and 1995, they report, "the production-adjusted use of toxic chemicals fell by 20 percent in Massachusetts and the generation of toxic byproducts by 30 percent." Meanwhile, "the responding firms were most enthusiastic ...."

There is no reason to doubt their claim that use of toxic chemicals fell by 20 percent and generation of toxic byproducts declined by 30 percent. But there is no basis for their claim that these important data were produced by the backyard process they outlined. For example, during and before that five-year period, Massachusetts, especially the Boston metropolitan area, went through a period of rather serious de-industrialization. Massachusetts reached its peak growth in heavy industry or manufacturing in 1984, with close to 674,000 employees; it then declined by mid-1999 to 435,000. That 35 percent decline was bad news for the "Massachusetts miracle" but good news for Massachusetts breathers, with the closing of some of those old, first generation factories. Meanwhile, the city of Boston was losing population and the Boston metropolitan area (as defined by the U.S. Census Bureau) grew by a mere 0.8 percent, second to the bottom among the 30 major metropolitan areas in the U.S., the bottom spot occupied by the already thoroughly de-industrialized Pittsburgh. To attribute a 20-30 percent improvement in anything to a pussy-footed "rolling-rule regime" is no less a propaganda ploy than a president claiming credit for improvement in GDP or SAT or a mayor claiming a personal victory over crime. And meanwhile, suburban and open country areas in central Massachusetts, Connecticut and Long Island are suffering with the highest ozone scores, thanks largely to the consequences of moral #2 of Hume's fable of the meadow.

In a perverse sort of way, I am grateful for having taken on this assignment, because I can see more clearly now than ever the insidious neo-classical liberal (Republican party) influence on the thinking of intelligent policy analysts and advocates. In that light I would like to end this on a couple of important warnings, pedagogically speaking. First, never fall in love with the process. Americans love process, especially if it is grounded in competition, visibility and democracy. I suppose this is because it helps us maintain the appearance of consensus. But process is a double-edged sword: Eventually it will cut the other way, and then it will be called betrayal.

Second, if we really want a safer and healthier environment we will either have to embrace drastic de-industrialization with a smaller-is-beautiful standard, or we will have to take our beloved process and place it in a solid, legal framework: It's called rule of law. You can set strict standards -- regionally, nationally, internationally, as the situation warrants -- and you put the burden of participation on the polluter. That standard can be a rule or a tax. It puts all interested parties on an equal plane, part of a stable and understandable structure. And it enables us to ask the truly operational question, which I heard Milton Friedman ask 30 years ago at one of the first conferences held in response to the early environmental protection movement: How much pollution can we afford?

The article "Beyond Backyard Environmentalism" is more a wishful fantasy than a true analysis of any purposeful reorientation in environmental regulation. The authors portray a world in which win-win situations abound, limited only by our willingness to build partnerships and work together through a participatory dialogue. Reality, unfortunately, is not that simple. This suggestion that we are moving into such a paradigm is premised on a premature rejection of valuable regulatory programs, a mischaracterization of the programs used as examples, and a misunderstanding of the motives of well-intentioned citizens whose families and livlihoods are threatened by "progress".

Compared to centuries of human impacts on the American environment, it is too soon to label three-decade-young "traditional regulations" a failure. The need for, much less the emergence of, a "new approach" as described by Sabel, Fung and Karkkainen is not recognized by the majority of public interest advocates in place of the current regulatory approach. Participation by many organizations in these dialogues indicates a need for public involvement, but does not necessarily signal a shift in citizens’ recognition of the value of more traditional approaches.

Conversely, corporate community involvement in, and even initiation of, participatory programs, likely does signify an interest in a new paradigm. The regulated community has expended billions of dollars to comply with environmental statutes, and millions more to undermine them. A new non-regulatory approach could help achieve the primary goal of corporations: to minimize costs and maximize profits.

Most environmental advocates would agree that the effectiveness of an environmental program depends primarily on its achievement of environmental goals. Using the authors’ examples, one must ask: Did the TRI or TURA reduce toxic chemical use? Did the Chesapeake Bay Program (CBP) increase the quality of the Bay? These programs, among others, can be viewed on a continuum, say a scale from 1 to 10. Effective programs such as the Clean Water Act’s water quality permitting program are closest to 10, TURA outranks TRI somewhere in the mid-range, and the Chesapeake Bay Program and Habitat Conservation Plans fall somewhere between TRI and the low end of the scale.

Through their initiation of public accountability, TURA and TRI are credited with stimulating a reduction of toxic chemical use and release. A closer look at these programs, however, fails to illustrate large-scale reductions resulting from participatory dialogue. In actuality, each of these laws relies heavily on what the authors refer to as "centralized command regulation." In addition to the fact that it has mandatory reporting requirements, much of TRI’s perceived success has been attributed to co-existing regulations. For example, large reductions in TRI releases, while indirectly stimulated perhaps by public awareness, came about due to mandatory phase-outs of chlorinated flourocarbons. Other reductions touted as successes in TRI are even less impressive paper reductions, resulting from changes in estimation procedures, or through chemical companies’ successful attempts at chemical delisting.

Most improvements in Chesapeake Bay are attributable not to the Bay Program, but to the Clean Water Act permitting program, bans on phosphate detergents enacted by state governments in spite of staunch industry opposition, and sewage treatment plant upgrades. None of these efforts boast the type of participatory, non-regulatory process that the authors espouse.

The concept of citizen involvement itself is actually more of a historical construct than a new one. As government evolved, citizens were appointed to serve as environmental stewards. In that paradigm, which still exists today, citizens were compensated for their time. This article does not envision compensating today’s citizen stewards for the time and effort expended through this onerous new construct, and as a result, confers what corporate lobbyists would call an unfunded mandate. Apparently, the authors envision a shift from citizens trained, compensated, and empowered to act as stewards to a decision-making citizenry that is disempowered, financially strapped, and as such, at a severe disadvantage in any stakeholder process.

This is not fiction. Well-intentioned everyday citizens like our parents are often invited to the table, without any resources to cover their travel or their time, and without any funds for outside technical assistance which they will require. They sit beside high-paid corporate lawyers and engineers attempting to out argue the lawyers and out engineer the engineers. With all due respect to them, how could our parents be expected to provide better service to their neighbors in the absence of federal regulations than the federal government provides? Such citizen panels are more likely to serve as smokescreens than as effective advocates. Who better understands complex technical issues, your mother, or the scientists paid by the public, to protect the public? This should not be read as a rejection of citizen involvement in protecting the environment – indeed its the only thing that really can – and it does so alongside a regulatory process.

In this light, promotion of "participatory approaches" touted by the authors as a new win-win approach, may instead be another method of corporate avoidance of regulations that were developed for the common good but that limit the extent to which costs can be externalized and profits maximized. The other possible explanation of the new-found prominence of these approaches, unfortunately, could be the current control of the political process that comes from campaign financing and other political/financial leverage. Equally unfortunate, there may be a limit to the endurance of principled, poorly-compensated, and in many ways altruistic citizens. The emergence of these programs is more likely the result of a combination of these factors than of a common belief in the benefits of such efforts.

As a result, the examples of the new approach outlined in the article are unconvincing at best. Few if any environmental improvements related to these programs occurred in the absence of regulation. While these efforts are premised on the obvious benefit of citizen involvement, stripping citizens of a regulatory system inflicts a handicap that could only lead to negative environmental consequences.

The proposed shift towards participatory decision-making, which the authors tout as an improvement while admitting it is improbable, stands as 1) a rejection of laws designed for the common good, 2) a shift away from compensating stewards of the common good, and while so-doing 3) preserving and even expanding the rights of corporations and individuals to externalize costs in pursuit of profit. The authors are right to suggest that this concept is counter-intuitive and improbable. Its environmental benefits also are highly questionable. After hundreds of years of environmental impacts on our finite planet, where the result of population growth and resource extraction are becoming more and more clear, a surer more probable approach is desperately needed.

Western Enlibra

Sabel, Fung, and Karkkainen have seen the future of environmental policy, and it is local control through consensus with added accountability. Many people would like this view of the future, especially those in the rural interior West. Local resource control is an old idea that westerners have long advocated to the powers back east. Those who live here know the land, and have a vested interest in its care. Just as we are accountable to the land, we are accountable to each other, and to the nation. Working together to find common ground just makes common sense, which is why collaborative decision making flourishes in the West. Collaboration groups now number in the hundreds, ranging from informal grassroots gatherings to government-mandated advisory councils.

This western vision is a driving force behind Enlibra, the Western Governors Association’s new doctrine for environmental management in the region. The governors want less remote control and more local control over western resources. Enlibra outlines their push for strong local leadership to balance development and conservation goals, and resolve environmental conflicts. In fact, the first two principles of Enlibra are identical to the policy architecture promoted by Sabel, Fung, and Karkkainen.

The first Enlibra principle is: "national standards, neighborhood solutions - assign responsibilities at the right level." Locals understand local conditions. In contrast to unimaginative bureaucratic responses, the federal government should help local people and policymakers develop their own plans to achieve binding targets, and to provide accountability. The second principle is "collaboration, not polarization - use collaborative processes to break down barriers and find solutions." The western governors believe that community-based collaboration can help produce creative solutions with political momentum. Together these principles support local leadership and collaborative efforts to help landowners and others enhance the environment and achieve economic productivity. Sound familiar?

But the western governors take this doctrine a few steps further. Enlibra does not hold fast to one tool as the means for effective and accountable local control of natural resources. Consensus works in some cases, and it does not in others. They recognize that a variety of tools in combination with collaboration can be used to improve western environmental and community well-being. "Markets before mandates - pursue economic incentives whenever appropriate," is the relevant Enlibra principal. In some cases, collaboration might be better organized with an auction block than at a bargaining table.

To illustrate, consider collaborative Habitat Conservation Plans (HCP) for endangered species protection. Recall a HCP acts as a safety valve for a private landowner whose property shelters an endangered species. A landowner with an approved HCP has a permit allowing the taking of endangered wildlife incidental to any otherwise lawful activity. The takings, however, cannot appreciably diminish the odds for survival and recovery of the species, and must be minimized and mitigated to the maximum extent practicable.

But at least three problems arise with the promotion of just consensus for HCP-the scope has changed with time, the process might be manipulated, and the process is seen as an invasion of privacy. First, the scope of HCPs has changed over the years. Back in 1982, people promoting HCPs had in mind a single landowner affecting a single species. Today people try to use HCPs to cover thousands of landowners and hundreds of species. Collaboration efforts are often fragile, slow, tedious processes. And most mediators will admit that adding more stakeholders will increase the costs and decrease the productivity of collaborative efforts. Second, many urban environmentalists fear that slick industry dandies will dominate the bargaining with local rubes. They fear that savvy trained experts with unending financial resources will dominate the process and pressure local communities to water down the HCP. The common perception is that anything so attractive to corporations and developers must be flawed, and primarily in their interests.

Third, many private landowners do not want to participate in a HCP collaborative process they see as inherently unfair. They consider the HCP process as an invasion of their privacy, a slap at their stewardship efforts, and an unfair restriction on their ability to protect their investment. These landowners won't even enter into a discussion when the topic of an HCP process arises. Accepting the idea of a collaborative process for critical habit protection could be interpreted as meaning that they are not taking good care of the land already. The old adages that "no good deed goes unpunished" and "give an inch, take a mile" capture their mood.

But getting the cooperation of private landowners is vital to the preservation of endangered species. About half of the listed endangered species have eighty percent of their habitat on private land. The question is what tool besides an HCP might work to induce proactive measures to protect endangered species on private property. The scheme would need to respect landowner privacy, acknowledge their prior stewardship efforts, and allow some flexibility in how they protect their investments.

This big sticking item is compensation. Compensation for landowners have supporters and critics from both side of the debate. Conservationists who support compensation see it as a practical way to buy cooperation; landowners proponents argue that it is only fair to compensate property owners who are restricted in their ability to protect their investment. Conservationists who oppose compensation see it as a backdoor policy to sabotage the ESA through underfunding; averse landowners see compensation as a lever that will open the door for more federal control over their property, especially given the line of species being considered for listing.

A tool that might bring both sides together could be to create a market for critical habitat. Markets allow for both collaboration and privacy. While we might not be sitting across the table, a market exchange still implies we have a consensus. You want to buy habitat, I want to sell it. Landowners can be provided the opportunity to sell private shares of critical habitat rights on the open market without opening themselves up to public access. Sabel, Fung, and Karkkainen discount market-based solutions because they require too much information. As any parent knows, too much flexibility with too little information can be a dangerous thing. This is a good point. But market respect privacy, and can help overcome major constraints facing consensus.

Markets can accommodate where consensus fails—specifically a landowner's desire to keep private what has been private for years. Collaborative efforts face a real constraint if explicit consensus is required, but a market can work. Markets protect a landowner’s desire to keep private what has been private for years. A shared feature of most models of consensus building is to even out power imbalances by "sharing information." But landowners who do not want to share information for whatever reason have little incentive to sit down at cooperate at the bargaining table.

How would this market be constructed? Similar to the real estate market, private-sector bio-economic appraisers would assess the biological quality of the critical habitat rights offered up for sale. The appraiser would certify the habitat as 4-star, 3-start, etc. quality. Sellers would then post their offer to sell a given habitat right for a given price subject to private appraisal. Negotiating fair market value for habitat rights will require independent and confidential biological/economic appraisals of habitat. Duration of the contract would be negotiated. Inspections and non-performance could be standard rules or open for discussion. Most importantly, information not essential for the public enforcement of the transaction would remain confidential.

There will be challenges. Finding landowners willing to sell habitat rights will be a task. Deciding where and how money should be spent to get the biggest ecological bang for the buck will take energy. Conservation contracts will have to be well specified because property rights are often complicated, especially for water rights. And determining which acquisition option is best for the circumstances-lease, purchase, or donation-must be thought through. This is not a pie-in-the-sky idea. Environmental markets are used around the globe, and are being proposed for use in climate change as a cost-effective mechanism to get more environmental quality at lower cost. Such a market would complement or replace already existing programs that use a bilateral negotiation landowner-by-landowner approach.

Healthy local control in exchange for stricter accountability is a trade-off many westerners might make. Suggesting that consensus is the main means to prevent hapless parochialism, however, might be asking too much. There is no universally preferred tool. Sometimes consensus works, but other times incentives work better, especially when privacy is the issue. The search for Enlibra, east or west, requires that we use the best tool for the task at hand.

A system of environmental protection might be evaluated either substantively or procedurally. Let us understand a substantive evaluation to involve an assessment of the system’s contribution to overall well-being, which might be defined in many different ways. Well-being could, for example, involve utilitarian or economic considerations; it may or may not be limited to the well-being of human beings; it may or may not involve judgments about rights. Let us understand a procedural evaluation to involve not the product of the system but its legitimacy, to be assessed above all by reference to democratic considerations, which might also be understood in many different ways. The intriguing and highly original discussion by Sabel, Fung, and Karkkainen (hereinafter SFK) points to an apparently new development, or set of developments, with many promising features; but I am not sure that SFK have shown that these developments are succeeding on either procedural or substantive grounds. In short, we do not know, from what SFK say here, that the developments warrant approval on democratic grounds, nor do we know that they are contributing a great deal to the various substantive goals of environmental protection.

A little background first. Until the late 1960s, much (not all) of environmental protection in the United States occurred via private law suits and judge-made common law. The result was a system that, by this time, was plainly producing excessive levels of pollution, with extremely harmful effects on social well-being (defined in any reasonable way). As we now know, regulation could greatly reduce those harmful effects, not costlessly, but without introducing comparably large harmful effects. The common law system was also highly objectionable on democratic grounds, since it ensured that pollution levels would be set, not through accountable institutions, and not as a result of democratic deliberation, but by unelected judges.

Between 1970 and the present, much (not all) of environmental protection has occurred via a remarkably ambitious, complex, and cumbersome system of national regulation. In many ways, the substantive results have been excellent, with extraordinary decreases, for example, in concentrations of all of the major air pollutants; ambient concentrations of lead alone have decreased by about 80% since 1985. Common law judges have been replaced by far more democratic institutions. But there have been serious problems as well. Much of the national effort has shown poor priority-setting, with some small problems receiving disproportionate attention, and with some large problems being neglected. For example, government devotes excessive attention to the relatively small problem of abandoned hazardous waste sites, and far too little attention to the much larger problem of indoor air pollution. Post-1970s environmentalism has also involved excessive costs, mostly because of the use of rigid, command-and-control regulation. Smarter and more flexible alternatives (such as taxes on polluting activities and tradeable emissions rights) could have produced the same reductions with hundreds of millions and probably billions of dollars in savings – savings that might have been used for environmental or other purposes.

At the same time, the post-1970s environment process has been nothing to celebrate from the democratic point of view. Far from reflecting the deliberative judgments of the nation’s citizenry, many governmental decisions have resulted from the political influence of well-organized private groups, such as the high-sulfur eastern coal lobby (attempting to use environmental protection to insulate itself from competition from low sulfur western coal) and the corn lobby (attempting to promote ethanol).

An important question is whether the United States will be able to develop structures of environmental protection that better promote our substantive and procedural ideals. Recent initiatives, involving cost-benefit analysis and economic incentives, have accomplished considerable good – with cost-benefit analysis pointing the way toward aggressive initiatives to remove lead from gasoline and to control destruction of the ozone layer, and with economic incentives contributing to massive, low-cost reductions in acid deposition. But SFK believe that they have identified much better, and largely unnoticed, structures for environmental protection, emerging from the participatory efforts of multiple actors and reducing key problems in flexible ways that do not impose an informational overload on national actors. There is a great deal of value in what SFK have to say; but from their discussion here, it remains unclear if the various initiatives – assuming that they amount to something like a unitary trend – deserve approval on either procedural or substantive grounds.

Democracy first: SFK emphasize the involvement of many "local actors," but much of what they say is quite abstract. Do the emerging structures really promote democratic ideals, suitably specified? They might show instead compromises among a set of organized interests, local and national, rather than anything deliberative or democratic. To be sure, Sabel identify far more participatory structures than national institutions are by themselves capable of providing, and the gain in local participation seems to be a large improvement. But surely many people are left out. Who are they, and with what consequences? Skeptics might fear that some of these processes are a form of environmental corporatism, reflecting not the outcomes of deliberative judgments of the citizenry, but negotiated solutions among visible well-organized actors. I doubt that the skeptics would be right, but it would be good for SKS to dispel their fears, by specifying the relevant democratic ideal and by showing, in concrete terms, how the emerging processes comply with (and perhaps inform) it.

The more important gap involves substance. What are the concrete results of the initiatives described by SFK for social well-being, defined in any reasonable way? As an illustration, consider the Toxic Release Inventory, a program that does appear to be a terrific success story, spurring large decreases in toxic releases without national regulatory controls. To make a full evaluation, it would be desirable – indeed, it would seem indispensable -- to know both the costs of these decreases and the benefits for human health and welfare (and for nonhuman animals as well). By themselves reductions are surely good, but it is impossible to know how good they are without having a sense of the consequences of exposure for what we do or should care about.

So too for the reductions brought about in Massachussetts. SFK say that "this apparatus works" because it has brought about substantial reductions in toxic chemicals and also "enabled firms to discover significant net benefits of pollution prevention." Net benefits in terms of what, concretely speaking? Do we know that the reductions have had good effects for social well-being, suitably defined? Would more reductions be better? Have the current reductions produced (a) trivial, (b) moderate, or (c) large benefits for health? It seems impossible to evaluate the program without knowing the answers to such questions. Similar issues might be raised about the Responsible Care Initiative and also the Chesapeake Bay Program. Compare the "best available technology" requirement in national environmental law, a requirement that has undoubted popular appeal but that has proved crude and troublesome partly because, from the standpoint of human health and other substantive values, some companies should do less than to use the best available technology, and others should do more -- by, for example, scaling back operations.

This is not at all to say that a substantive evaluation of environmental programs should depend on a crudely economistic cost-benefit analysis; surely it should not. But from what SFK say here, it is possible that the health and associated benefits of the reductions are small or even trivial and also that the resulting decreases have been quite costly (even if in a sense voluntary). Costs of this kind are no mere technical matter; their consequences may include reduced employment, increased poverty, and increased prices, which come down especially hard on those least able to pay. Or it is possible that the relevant programs have done relatively little in terms of promoting the substantive goals of environmental protection – and that other approaches would be better. Most of all, we need to know more about the effects of these programs for the health and welfare values associated with the relevant programs.

To deepen SFK’s account of the emerging structure, it would therefore be helpful to have more in the way of both theory and empirical work. What is the account of democratic legitimacy by which we might evaluate the structures described by SFK, and do those structures fit that account? By what substantive criteria might we assess a system for environmental protection and how, concretely, have the structures at issue done under that standard? Have they, for example, reduced serious risks to life and health without imposing high costs, which can lead to lower wages, less employment, and higher prices? It is not the least virtue of SFK’s intriguing essay that the developments they describe put such questions squarely on the table.

The partnerships that have caught the eye of Sabel, Fung and Karkkainen (SFK) do not just involve technical practitioners and citizens; they are collaborations among a wide range of stakeholders who realize that well-managed, face-to-face problem-solving sessions can help them advance their self-interest. While we can debate just how much of a democratic reform these activities represent, they certainly have produced impressive environmental results. [See Lawrence Susskind, Paul Levy and Jennifer Thomas-Larmer, Negotiating Environmental Agreements, Island Press, San Francisco, 1999.] Indeed, the "improbable reorientation" that Sabel et al. have discovered, has been going on for quite some time under the broader banner of the environmental dispute resolution (EDR) movement. There are literally hundreds of instances in which large number of stakeholding interests representing a wide range of contending groups have—with the help of trained mediators—worked out voluntary agreements, including performance standards, to which all parties (including the public agencies) have agreed to be bound. In fact, there are even federal and state laws encouraging (and circumscribing) such consensus building efforts as well as university programs that offer all relevant groups the knowledge and skills needed to participate in these negotiations.

Because SFK are not attentive to the full range of relevant experience, they focus on questions that practitioners in environmental dispute resolution have already resolved, and don’t get to the next set of questions on which we need their help. In particular, they are musing about three things that have, for better or worse, been resolved: the relationship between the power that seemingly devolves to ad hoc assemblies in this new form of regulatory dialogue and the formal decision-making authority that has always been in the hands of regulatory agencies; the role of experts versus the role of less engaged citizens who are not formally included in discussions; and, finally, the potential split among environmental activists into those who "prefer the inside game of pluralist grappling for influence at power centers" and those who are "reorganizing the take advantage of the local participatory possibilities of the emergent regime." I will summarize how these issues have been resolved and spell out the next set of questions that require attention.

1. Power and Authority. When a legislative body enacts a law (and an administrative agency adopts rules to implement that law), the agencies involved can not turn over to an ad hoc assembly the authority to set performance standards or other terms of enforcement on a case-by-case basis. What they can do, though, is ask an appropriately selected set of stakeholders to generate a proposal (i.e. a set of consensus recommendations) that is not inconsistent with the intent of the relevant law and regulations. While the agency retains the power to ignore the group's advice, there is usually no reason for them to do so—especially if agency staff have participated at every stage of the consensus building effort. Ad hoc consultations must take place "in the open" (i.e. this is required by open meeting or other sunshine laws). The product of most such collaborative partnerships are recommendations that still require the relevant agency to act. What is most interesting is that many of the negotiated outcomes of these ad hoc processes require members of the regulated community to accept constraints or to make voluntary commitments that exceed what the regulators could otherwise impose. They are accepted in exchange for flexibility in how and when certain regulatory requirements must be met.

2. Experts and Expertise. Most environmental dispute resolution efforts begin with a period of joint fact-finding. That is, all the stakeholders (including the regulators) agree on the selection of a set of experts to advise them collectively. Whatever knowledge and skills the experts have to offer are shared simultaneously with all the parties. A neutral facilitator acts as interlocutor—making sure that even the least technically skilled participant is clear about what the experts have to say and how they went about gathering information, making forecasts, and preparing analyses of various kinds. Thus, the technical resources operate in support of the collaborative effort—avoiding the "battle of the printout" and the "dueling experts" so typical of legal confrontations. [See Connie Ozawa, Recasting Science, Westview Press, Boulder, Colorado, 1993 (?) not sure of the year]

3. A Schism in the Environmental Community. Some advocacy groups have refused to participate in certain efforts to mediate environmental disputes, relying on media campaigns, direct action, and legal challenges to pursue their interests. Others have been willing to "come to the table" and have been remarkably successful at getting their way. Some advocacy groups have agreed to negotiate on some issues while refusing to do so on others. The same, I might add, is true of regulatory agencies. In some regions of the country, the Environmental Protection Agency has taken the lead in suggesting mediation, in other regions there have been few such efforts.

Whatever their reasons, the leaders reserve the right to decide whether or not to participate in particular consensus building efforts. If a key player refuses to participate, then dispute resolution can not go forward. As it turns out, though, there are usually more than enough disputants willing to negotiate. Since the product of these efforts is, again, only a proposal, and all such negotiations are transparent, groups that choose to stay on the sidelines retain an opportunity to make their views known at the end. Indeed, from a legal perspective, even those who choose to participate in an ad hoc effort to achieve a tailored settlement reserve their right to challenge the outcome in court if they feel they were deceived in any way or that some constitutional questions remains unanswered.

After more than twenty years of experimentation and hundreds of documented successes, several important questions remain about environmental dispute resolution: Do mediated solutions have precedential value? Should the practice of environmental mediation be regulate? Does fairness require that hard-to-represent interests (like future generations) be represented by proxies?

1. Precedential Value. The point of case-by-case problem-solving is to permit stakeholders to work out the most effective way of meeting the performance requirements contained in laws and regulations (and to stop mandating the choice of technology and other methodological details). It would follow, therefore, that differently tailored solutions might well emerge in roughly similar situations.

Our system of law and regulation presumes, however, that similar situations ought to be handled in the same way to ensure fairness. Whether procedural guarantees (like the right to participate in any mediated negotiation in which you are a stakeholder) will be sufficient to assure fair treatment, remains to be seen. At present, mediated results are not recorded (the way legal decisions are). They can't be cited with the same effect in subsequent (similar) situations. Does fairness require that the results of environmental mediation ought to have precedential value?

2. Regulating the Mediators? There is a growing pool of experienced environmental mediators in the United States. Various states and federal agencies maintain rosters of such professionals. But there is no certification by any central body. Mediators have very different levels of scientific background and mediation experience. Some are lawyers while others are not. One unanswered question is whether there is a minimum level of (testable) competence that should be required of anyone who proposes to mediate an environmental dispute.

3. Representation. There are almost always hard-to-represent or diffused constituencies who are not formally represented in an environmental dispute resolution. One view is that representative democracy is not perfect, either, and that ad hoc efforts to resolve environmental disputes should not be held to a higher standard of "representativeness" than typical legislative or administrative procedures. The contrary view is that a system for selecting proxy representatives would not be hard to generate and would add to the democratic appeal of the new environmental regime.

Consensus building in environmental regulatory (and other) situations requires (1) convening the appropriate parties; (2) clarifying roles and responsibilities appropriate to the situation; (3) deliberating in a transparent and effective way; (4) reaching and testing the scope of agreement; and (5) binding the parties to their commitments. [See Lawrence Susskind, Sarah McKearnan, and Jennifer Thomas-Larmer, The Consensus Building Handbook, Sage Publishers; Thousand Oaks, California; 1999]. As SDF suggest, when this is done right, "disciplined consideration of alternative policies leads protagonists to discover unanticipated solutions provisionally acceptable to all." This is true and important, but it is not news. The hard questions remain.

Matt Wilson and Eric Weltman

"After Backyard Environmentalism" identifies and discusses some novel and important environmental policies and programs. Unfortunately, the article could be easily read to support government abdication of its fundamental responsibilities. It is the government’s job to protect public health and the environment -- it should not be the obligation of citizens to join "stream teams" or publicize the Toxics Release Inventory (TRI) data to enjoy clean water and air. Although citizen activism is at the core of our organization’s mission, it is mostly successful in concert with government action, not in lieu of it.

In fact, engaged citizenship on environmental matters is the exception, not the rule, and is often made necessary when the government is not doing its job of enforcing pollution limits and other environmental requirements. Clean water and air should be a right enjoyed by everyone, not just "squeaky wheels" with the time and assistance necessary to take up the battle for a safe environment.

In addition, the authors overstate the significance of information, planning, and public involvement initiatives. In many circumstances, they may not the best policy. When they do work, they do so in tandem with other policies, not substituting for them. In fact, the TRI data and other public information is often used as a tool to prod government action to enforce permits and regulations, not to embarrass polluters into cleaning up their acts.

Different types of environmental threats necessitate different policies, making it unwise to endorse one model as the wave of the future. For example, the authors rightly praise TURA as a model law for reducing industrial chemical use. For certain chemicals, however -- where there is no safe threshold for exposure, or the toxin is persistent and builds up in the food chain -- outright bans may be the safest and wisest policy. This was certainly the case for lead in gasoline, and may be equally so for perchloroethylene (perc), a dry cleaning solution, and MTBE, a gasoline additive.

In fact, the threat of the "stick" of bans, enforcement actions, and other stringent measures are necessary for the "carrot" of voluntary initiatives to work. For instance, the authors state that "leading environmentalists, landowners, public officials, and scientists contend that, on the whole, [Habitat Conservation Plans] produce more, better, and more sophisticated ecosystem management regimes" than strict application of the Endangered Species Act (ESA). Unfortunately, they cite no evidence to back this claim, nor do they even name any of the "leading environmentalists" who support it. More importantly, though, the threat of ESA Section 9 should be recognized as necessary to bring developers to the table for the expedient compromises developed in Habitat Conservation Plans. It is my experience that in negotiations with companies over a cleanup plan, the power that citizens wield is the threat of demanding government action; it is this threat which brings companies to the table and ultimately helps citizens have their demands met.

Again, the authors tend to overstate the success of their model initiatives, overlooking how they work in tandem with other policies. For instance, the authors state that the "publication of TRI data immediately disciplines polluting private actors." They cite no evidence to substantiate this, except for the anonymous claims of some "commentators." I suspect, however, that the TRI data may have had its greatest impact in embarrassing polluters in the years when it was first released, and publicity was at its height. When this year’s data was released in the spring, to my knowledge, only one newspaper article highlighting a particular polluter appeared in all of Massachusetts.

More importantly, for many citizens, the TRI data is a tool to encourage more government action against polluters -- not to embarrass companies into conducting voluntary cleanups. For communities living with dirty air or polluted water, citizen activism is usually necessitated as much by a government willing to overlook the problem as much as by the companies causing the problem. This raises three key points. First, the TRI data and other public information are not a substitute for permit restrictions on pollution limits and other requirements; they are, in many situations, tools for citizens to ensure that the government fulfills its obligation to enforce these requirements. Second, the use of these strategies is only necessary in the unfortunate circumstances when the government is not doing its job.

Third, an extraordinary commitment of resources, skills, and time is required for information and public involvement opportunities to be effective in protecting public health and the environment. Many citizens -- for example, single parents, or families juggling several jobs -- do not have the time to organize a campaign against a polluter, or participate in tributary protection planning. Moreover, most citizens lack the skills necessary to organize effectively against powerful corporations. In New England, the Toxics Action Center provides organizing strategies, media training, and legal tactics to New England residents who are fighting local environmental hazards. Yet, not every state has a Toxics Action Center or a similar such organization. In addition, technical assistance is often necessary for citizens to understand the TRI data and the TURA information, and to determine what steps companies can take to clean up their acts. Yet, such assistance from the government is generally lacking; for these programs to truly fulfill their promise, grants should be made available for hiring consultants to advise grassroots groups.

The reality is that companies are more likely to have both the time and the expertise to participate in stream teams, Habitat Conservation Plans, and the like. In fact, the authors acknowledge that participation in Habitat Conservation Plans varies for site to site, often including only a permit seeker and a government official, potentially "transforming them into unprincipled backroom deals between regulators and the regulated."

Which leads to the most important point: Squeaky wheels should not be the only ones getting the grease. Engaged citizenship on environmental matters is the exception, not the rule. Yet, it should not be only communities with residents willing and able to publicize the TRI data -- and with newspapers willing to print it -- that have clean air. "Stream teams" may be effective, but it should not be the obligation of citizens to form teams for every stream, lake, and river to ensure their cleanliness. These tools are often necessary for pressuring the government to fulfill its obligations to protect our health and safety. But the use of these tools by citizens should not be obligatory for living in a clean and safe environment.