Author Archives: Peter Levine

the Clean Air Act and democracy

I am certain that global warming is a serious problem. By regulating carbon dioxide emissions, the Environmental Protection Agency may ameliorate the damage a bit. However, I don’t dismiss the arguments of the dissenting conservative justices in the recent global warming decision, Massachusetts v. EPA.

A responsible blog post would be based on my careful reading of the majority opinion and the dissents, relevant portions of the Clean Air Act, the best current commentaries, and a famous law review article by Cass Sunstein about the Clean Air Act (Michigan Law Review, 1999). Despite good intentions, I can see that I’m not going to pull that off. Instead, here is a simplified argument:

1) Major decisions in a democracy should be made by the elected branches of government. Legislatures are accountable, they are deliberative, they can balance costs and benefits across the whole federal budget, and they can choose among all constitutional remedies to a problem. For example, to address global warming, Congress could enact carbon taxes, import/export taxes, cap-and-trade regimes, tax credits, or regulations on producers or consumers.

2) However, Congress has a tendency to duck the tough decisions by writing deliberately vague statutes. For example, I am aware of a section of the Clean Air Act that empowers the EPA to set ambient air quality standards at levels “requisite to protect the public health” with “an adequate margin of safety.” No amount of air pollution has zero potential impact on safety or health. “Adequate” safety means some amount of risk that’s greater than zero–but not too much. That’s not a scientific or technical judgment; it’s a value-judgment about what level of safety is worth the cost. Congress avoids making such value-judgments, because then it would be responsible when some people suffer–or even die–from whatever pollution is left in the air. Congress would also be directly responsible for the financial cost of any regulation. Instead, it passes the responsibility to EPA, which can then be blamed for both the costs of a regulation and the environmental harms that are left over. Unfortunately, EPA lacks democratic legitimacy, and it can only regulate (not tax or take other actions). Regulation may be a highly inefficient response to global warming.

3) When the EPA or other regulatory agencies fail to deliver adequate policy, it is tempting to sue them. But then a court’s judgment substitutes for that of a legislature. Courts lack democratic legitimacy, expertise, and the ability to impose such policies as taxes or cap-and-trade systems. They are set up to hear cases and controversies between parties; they are not good at balancing one person’s interests against the common good. For example, they are not responsible for the overall budget, so they cannot decide whether a decision that has costs to the government is worthwhile, all things considered.

Thus the only really satisfactory solution is for Congress to pass laws on global warming. Massachusetts v EPA will actually be counterproductive if it lets Congress off the hook or allows Congress to delay.

Jamison Colburn argues that the case is not very significant, anyway. “What it comes down to is this: if EPA is going to refuse to regulate greenhouse gas emissions as ‘air pollutants’ under the Clean Air Act, and it chooses to do so in some discrete ‘agency action,’ it must do so on better grounds than the (lame) argument that the statute wasn’t enacted with the specific intent to regulate greenhouse gases or similar calamities. That is all it comes to, though.” If Colburn is correct, then populist/democratic concerns about judicial activism are misplaced–but only because the court didn’t do much at all.

the money primary

This is a politically neutral blog, and indeed my vote is still up for grabs. However, I’d reflect on the big political news of the week–the fundraising figures–as follows. First, I believe that Senator Obama has struck a chord by promising a different kind of relationship between citizens and the government. He doesn’t promise to solve problems (which is almost always impossible for governments to do), but he proposes to collaborate with the American people, who are in a serious mood and are capable of working constructively together. Most political “professionals” (reporters, consultants, and others) cannot understand the deep appeal of this message. It reshuffles the political deck.

Second, hundreds of thousands of Americans made small contributions, and that is evidence that social networking sites and other technologies have dispersed power somewhat, at least compared to 20 years ago. That’s a good thing.

Third, however, it is a great pity that we have a “money primary.” It’s actually a double shame. It’s obviously unfortunate that money counts so much–and despite the small contributions, the median donor is surely quite wealthy. It’s also unfortunate that reporters feel they must cover matters like fundraising so intensively. They do so because they know that candidates who raise unexpectedly large amounts of cash have (all else being equal) greater chances of winning. I often quote CNN’s political director, Mark Hannon, who said in 1996 that his network conducted daily polls because they “happen to be the most authoritative way to answer the most basic question about the election, which is who is going to win.” The same assumption explains why reporters cover fundraising. But who will win is not the most basic question–not for a citizen. The most basic question for a citizen is: How are we going to address problems? A subsidiary question is: Which candidate should I vote for to help address our problems? It’s irrelevant who is most likely to win–although the press sometimes makes it quixotic to vote for candidates who are behind in the horse race.

It’s worth imagining a democracy in which people had quick access to the names and employers of all political donors–so that they could hunt for influence and corruption–but reporters were so busy covering issues and citizen’s work that they didn’t bother to mention the fundraising totals.

writing and social change

(Written after a long coalition meeting in Washington.) A few weeks ago, a family friend who teaches in the humanities at a large state university said, “I hear you’ve been writing about how everything I do is wrong.” That’s an exaggeration. It’s true that I’m not fully comfortable with the way we organize higher education. I’m not sure that big lecture classes are satisfactory opportunities for education, nor that we select and sort our students fairly. When I observe a lack of motivation and attention among college students, I blame it on the overall educational system, not on their character or on the professor’s skills as a communicator. Thus I’d argue that institutions should change–but I would never say that it’s a waste to lecture in the liberal arts.

What sticks with me, however, is not the summary of my views, but the key verb: “writing.” Professors ask each other, “What are you writing on?” Or (meaning the same thing), “What do you work on?”

I do write. This blog may be evidence that I type too much. I’ll admit to a case of cacoethes scribendi. But I would be unsatisfied if my only way of addressing a problem were to read and write about it. I don’t think you can learn enough about a social or institutional issue by reading; you must also listen, negotiate, observe, and experiment. By the same token, writing doesn’t make things happen. Books and articles can help to change opinions. They can certainly guide activists by analyzing complex problems. But they very rarely have an impact by themselves. If I wrote about what’s wrong with education, but could never help to organize a response, I’d be frustrated.

public participation in planning: lessons from New Orleans

Abigail Williamson, a graduate student at Harvard, has written a study of public participation on the Unified New Orleans Plan (pdf). Here I assume that her narrative is accurate and comprehensive; I use it as the basis for some thoughts about civic engagement and planning.

According to Williamson, there have been three main planning efforts in New Orleans since the hurricane. The first was called “Bring New Orleans Back” (BNOB). It was ordered by the Mayor and run by local experts and leaders–an elite. It has been praised for its technical excellence, but it became highly controversial because it rejected rebuilding some of the flooded neighborhoods that were poor and largely Black. Because it was controversial and lacked political legitimacy, the Mayor distanced himself from it, and it died.

The second planning process was run by a firm called Lambert Advisory. Williamson’s interviewees told her that Lambert’s process truly reflected input from diverse citizens; but the resulting plan was not satisfactory. (I’m not sure exactly how it failed to measure up.)

The third planning process was designed to be broadly inclusive and technically satisfactory. It started off with some failed public meetings, but then AmericaSpeaks was brought in to organize demographically representative, deliberative sessions involving hundreds of people at once. In the interests of disclosure, I must note that I am a member of AmericaSpeaks’ board. But Williamson’s study was independently funded and she finds that the meetings truly were representative, substantive, and constructive. One observer recalls:

More than anything, I think the thing I was most impressed with about Community Congress II, in addition to just the sheer numbers they were able to reach, when I went and I walked around, I saw people sitting at tables together of different socioeconomic backgrounds, different parts of town, having healthy discussions. Not necessarily always agreeing, but actually having conversations. Not just rhetoric, not yelling and screaming, but really just having healthy conversations about what they saw as the issue here.

The resulting plan appears to have legitimacy–meaning not that it is necessarily just or smart, but that people believe it arose from a legitimate process. Just for that reason, it appears likely to pass.

This is a major achievement, and it would have been impossible without demographic representativeness and high-profile, large-scale, public events. These events took skill and commitment to pull off. Those are conclusions to emphasize and celebrate. Nevertheless, I’d like to point out some limitations and challenges:

1. Framing the deliberation is tricky. If citizens are asked to produce a truly comprehensive plan (with a map and a detailed budget), then they will essentially govern the city. But no one has elected them, nor will the political leaders yield without a fight. If, on the other hand, citizens generate a plan without details, then they can avoid tradeoffs; and in that case, they aren’t really deliberating. Likewise, if citizens are told to work within very “realistic” constraints, they cannot demand justice. For example, if they are told that there is only $x of state money available, they are blocked from saying that the state should be more generous. If, on the other hand, citizens deliberate without constraints, they can invent unrealistic scenarios.

2. A process like this could be manipulated to get results that someone wants. The organizers could manipulate it, or an outside group could get its own people into the meetings. In other words, the legitimacy could be false. I’m committed to AmericaSpeaks and will vouch for this particular process. But the more such deliberations are used to make important decisions, the more people will try to manipulate them.

3. The organizers had to make a prior decision about the definition of “the people.” They chose the population that had lived in New Orleans prior to Katrina. Consequently, they aimed for a demographic mix that looked like the traditional city, not like the city today; and they organized town meetings in major diaspora cities from Houston to Atlanta. They could have chosen a different benchmark–current residents, or residents of the whole state, to name two examples. This is essentially a question of values, and it cannot itself be deliberated.

4. Planning is work. That’s what was evident at the tables during the Town Meetings–not just talk, but work. However, planning is only one aspect of public work. Buildings must be built, trees must be planted, money must be raised, newsletters must be written, and so on. It’s important for this work, not merely the talk, to be democratic and participatory.

on mannerism and modernism

Over the weekend, I spent some time in the El Greco room of the National Gallery, Washington, which holds the finest collection of his work outside Spain. The National Gallery wisely hangs El Greco alongside Tintoretto, an artist 23 years his senior who was a direct influence. Both painters depict figures elongated beyond realism. They hide the backgrounds or otherwise pull their subjects out of three-dimensional space onto the plane of the picture. They leave their brushwork visible; they choose unearthly colors; and they draw attention to their own tortured emotions.

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