Bad Times for Good Government

by Douglas Kysar

September 27, 2010

This post looks at two recent books by CPR Member Scholars in the context of the BP disaster and other recent regulatory failures:

The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro

Facing Catastrophe: Environmental Action for a Post-Katrina World, by Robert R. M. Verchick

Does the BP oil spill signify the need for an entirely new conception of the administrative state, one reformulated to meet the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social and ecological well-being?  Or does it simply suggest the need to redouble our commitment to environmental, health, and safety laws that are already on the books and that would have prevented the disaster if they had been vigorously enforced?

Two valuable new books shed light on these questions.  Both were written before the spill, but both will inevitably be read with that disaster in mind.  The first, Robert Verchick’s Facing Catastrophe: Environmental Action for a Post-Katrina World, is uncommonly moving for a tract on environmental law.  It emerges out of Verchick’s experience relocating to New Orleans not long before Hurricane Katrina struck in 2005.  One might think that the author, having no prior connection to the city, would have been tempted after the storm to move on to drier pastures.  Yet the devastation wrought by Katrina had precisely the opposite effect on him.  He immediately sprung into action in support of his newly adopted home, providing congressional testimony on issues relating to Katrina and its aftermath, serving as a volunteer and board member for local initiatives as part of the rebuilding effort, and researching and writing Facing Catastrophe.  The result is a beautifully written and deeply insightful book on the challenge of managing disaster and achieving sustainability amidst a changing world.

Verchick’s central themes are neatly condensed into three key mantras for policymakers:  “Go Green, Be Fair, and Keep Safe.”  Sound bite-ready, to be sure, but Verchick supports his mantras with thorough interdisciplinary analysis.  Going green, for instance, refers to the need for policymakers to remain acutely aware of services provided by intact natural ecosystems that are ignored or undervalued by markets.  Even prior to the BP spill, millions of acres of naturally protective coastal marshland in the Gulf had been destroyed or impaired by oil exploration and shipping activities.  Their loss not only magnified the devastation wrought by Katrina, but also impaired bird migration, fish hatching, and water filtration.  Verchick documents the existence and importance of these impacts in part through careful scientific and economic studies, but also through vivid descriptions of what it is like to actually get in a canoe and travel through healthy wetlands.  By the time the reader gets to his jaunty description of Percy Viosca, Jr. – an early twentieth century Louisiana naturalist who conducted pioneering attempts to quantify the economic value of wetlands, much like expert witnesses will be doing in the BP litigation – Verchick’s chops as a knowledgeable and gifted writer are on full display.

“Be Fair” and “Keep Safe” are presented with similar adroitness.  The former refers to the need to adopt integrative and holistic understandings of fairness in environmental law and disaster policy.  On certain narrow accounts, “justice” simply requires monetary compensation when individuals or groups are made to bear a disproportionate burden from society’s tradeoffs.  The many billions of dollars that will be doled out to victims of the BP oil spill come to mind.  For Verchick, justice is a much richer concept requiring society to provide “vulnerable people with the protections and benefits they need to lead safe and productive lives.”  Disaster often works to reveal background conditions of inequality – of money, yes, but also of access to healthcare, community support, education, and other vital contributors to safety and well-being – that should be remedied well in advance of floods and spills.  Verchick would institutionalize foresight and sensitivity on these dimensions of “disaster justice” through a new executive order.

“Keep Safe” similarly asks policymakers to be mindful of the hazards and catastrophes that too often are excluded or rounded out from conventional risk planning exercises.  Under Verchick’s approach, the sloppy, cavalier attitude displayed in BP’s disaster response plan for the Gulf of Mexico – which included, among other things, a section on walruses and other marine mammals that had rather obviously been lifted from a different document – would never have passed muster.  Proactive, imaginative scenario planning must replace the kind of narrow or formulaic risk projection techniques that have become all too commonplace.  Moreover, as Verchick explains, conventional risk planning exercises also smuggle in controversial value judgments regarding such matters as our responsibility to future generations and our belief about the importance of workers’ rights.  Rather than obscure these judgments through technical jargon and padded paperwork, Verchick would call them out for direct democratic engagement.

Although replete with concrete policy suggestions, Facing Catastrophe primarily advances a conceptual agenda.  It asks all of us to see differently so that we might begin to govern more effectively and justly.  The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro, is less concerned with proposing new ways of seeing and governing as it is with diagnosing why we haven’t even lived up to the ones we already have.  It begins with Grover Norquist’s much-quoted desire to reduce government “to the size where we can drown it in the bathtub,” and then documents in painstaking detail how that desire has been fulfilled over the past three decades.  Using five key federal agencies as their focal points, the authors conclude that “[d]espite their idealistic origins, forty-five years later, the five agencies are in shambles.”  Like Facing Catastrophe, Steinzor and Shapiro mix a revealing battery of statistics and analysis with unforgettable, telling anecdotes.  For instance, at a time when billions of dollars worth of sometimes unsafe toys cross our borders each year, it’s hard to read that the Consumer Product Safety Commission’s sole lab for toys existed in a cramped office in Washington, D.C., and that an employee was forced to test shatter resistance by dropping toys in a small space behind a door.

How this state of affairs came about is a complex tale involving bouts of neglect and overreaching by all three branches of government.  Steinzor and Shapiro’s analysis of Congress is especially revealing, as they identify seemingly mundane practices – such as the separation of responsibility for agency funding from oversight of agency priorities and implementation – that exert a powerful, debilitating effect.  The result is a dynamic the authors dub “hollowing out” of government, in which agency responsibilities stay the same but resources needed to fulfill those responsibilities erode over time.  Even when agencies do manage to propose needed rules and regulations, they must overcome political scrutiny by the President’s Office of Information and Regulatory Affairs (OIRA).  Staffed primarily with economists who evaluate proposed regulations using controversial techniques of cost-benefit analysis, this office comes in for special condemnation from Steinzor and Shapiro, as it seems most capable of subverting the environmental, health, and safety goals embraced by the American people through the legislative process.  A similar subversion occurs when unelected judges use their power to review agency rulemakings in an overly aggressive manner.  Rather than merely ensuring the basic rationality of agency decisionmaking, these judges adopt an essentially political role, substituting their views on the nation’s environmental, health, and safety goals for those of the Congress and agency professionals.

Steinzor and Shapiro’s central theme in response to this situation is that “to fix government, you must rehabilitate it.”  Thus, they advocate restoring prestige to civil service by raising government salaries and introducing accountability metrics, helping to close a very real pay gap – and an at least perceived performance gap – with the private sector.  They also propose institutional and procedural reforms to shake Congress out of its increasingly dysfunctional state, and advise courts to scale back on their forays into agency micro-management.  To similarly rein in executive branch politicization of agency activities, they would substitute what they call pragmatic regulatory impact analysis for the technocratic smothering of OIRA’s cost-benefit analysis. 

Like Facing Catastrophe, Steinzor and Shapiro’s volume reads as if it were an eerie prequel to the Deepwater Horizon disaster.  Still, for all their strengths, both books might be criticized for assuming what the American people really want is a robustly protective administrative state and what they need is simply the right set of analytical tools and institutional reforms to achieve it.  Conservatives might dispute the former assumption, pointing to opinion polls and election results that suggest we do not really want to return to the 1970s heyday of environmental, health, and safety law.  On this account, the unmet goals of those landmark statutes would not represent broken promises to the public, but instead relics from a bygone era of American politics in which the tradeoffs from strong regulatory protections were less appreciated.  More interestingly, a growing band of progressives might dispute the latter assumption, arguing that no set of tools and reforms can possibly rehabilitate the administrative state, at least as it became understood during the previous century. 

To supporters of this “new governance” view, problems such as climate change, terrorism, financial market collapse, and global product safety reveal the inability of conventional regulatory frameworks to combat twenty-first century threats.  For these problems, targets of regulation are embedded within intricate social, economic, and ecological systems that span the globe and defy prediction or control.  Thus, “governance” can only emerge within such systems from the decentralized interventions of public and private actors, each operating at different levels and from different spheres of authority, utilizing a range of policy tools both hard and soft, and representing diverse interests and stakeholder groups.  The chaotic gumbo of actors who responded to the Deepwater Horizon incident is a perfect illustration of this complex tissue of authority, notwithstanding attempts by BP and the federal government to portray the existence of a “Unified Command.”

Which brings us back to the opening dilemma:  Have we been thrust into a new era of risk that requires a reinvention of government as “governance,” or did we bring this era onto ourselves by giving up on old-fashioned regulation by professional civil servants?  Unfortunately, the answer is both.  Straightforward, faithfully applied regulation could well have prevented the BP oil spill, but the slowness and ineptitude of the government’s response to the spill make it hard for people to believe that’s true.  Having effectively hollowed and hobbled our government over the last three decades, we have evidence all around us for abandoning belief in the very possibility of good government.  This is the insidious, self-reinforcing genius of Norquist’s desire to reduce government to a drownable size.  Every problem that follows a stripping away of regulations or a downsizing of agencies only strengthens the apparent need to further strip and downsize ineffective government.  To some, such problems might instead underscore the need for a new era of postmodern governance.  What they don’t seem to do, however, is revive enthusiasm for 1970s era public administration.

So, good “governance” it is, but how we will mount the cultural vision and political will necessary to enact such a system is yet to be written.

Douglas Kysar is the author of Regulating from Nowhere: Environmental Law and the Search for Objectivity.

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 Douglas A. Kysar is Deputy Dean and Joseph M. Field ’55 Professor of Law at Yale University Law School.

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