Cass R. Sunstein
The intriguing and highly original discussion by Sabel, Fung, and Karkkainen points to an apparently new development, or set of developments, in the area of environmental regulation, with many promising features. But I am not sure that they have presented a compelling case that these developments are desirable. To answer that question it is necessary to know more, especially about the consequences for environmental protection.
A system of environmental protection might be evaluated either substantively or procedurally. Let us understand a substantive evaluation to involve an assessment of the systems 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 problem with the authors presentation is that we do not know that the developments they describe are contributing a great deal to the various substantive goals of environmental protection, nor do they warrant approval on procedural, democratic grounds.
A little background. 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 percent 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 tradable emissions rights) could have produced the same reductions with hundreds of millions and probably billions of dollars in savingssavings 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 nations 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 goodwith 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 Sabel, Fung, and Karkkainen 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 they have to say; but from their discussion here, it remains unclear if the various initiativesassuming that they amount to something like a unitary trend deserve approval on either procedural or substantive grounds.
Democracy first: the authors 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, Fung, and Karkkainen 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 the authors 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 Sabel, Fung, and Karkkainen 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 desirableindeed, it would seem indispensableto know both the costs of these decreases and the benefits for human health and welfare (and for non-human 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. If the reductions have done very little to improve human health, but have increased prices or decreased wages, the program is nothing to celebrate.
So too for the reductions brought about in Massachusetts. Sabel, Fung, and Karkkainen 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 moreby, for example, scaling back operations when the health consequences of even the best technology is serious.
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 Sabel, Fung, and Karkkainen 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 protectionand 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 the account of the emerging structure, it would 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 here, 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 this intriguing essay that the developments they describe put such questions squarely on the table.