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Sabel, Fung, and Karkkainen have a clear fix on the six-year-old debate about what others are calling "civic environmentalism" or "second generation environmental policy." They describe this new form of governance accurately:
1. It 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 products, services, and production processes to minimize environmental impacts while still making a profit.
3. Regulators allow flexibility when the environmental results can 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 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 Karkkainen 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 end up representing out-of-town and national interests. Recently thirty states negotiated a remarkable agreement about interstate movement of ozone. But in the end, they asked EPA to incorporate the agreement into 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 are about real differences. Often businesses 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 who sits 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 called the old EPA system "broken." Congress may be 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, Fung, and Karkkainen celebrate are still "marginal," the Academy reported. 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 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 they 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 Karkkainen 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 in a Jacksonian direction–though perhaps Toqueville is a better guide. But we need Madisonian pluralism too.
The United States is in the midst of a fundamental reorientation of its environmental regulation, one that is as improbable as it is unremarked.
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