September 14, 2020

evironmental law, overview questions (chapter 1, Layzer)

I’m in a tutorial with John Hultgren at Bennington College, hoping to get some background and working knowledge of how environmental policy works (and seems like it isn’t working).

I started with the introductory chapter from Judith Layzer’s 2002 book, The Environmental Case: Translating Views into Policy (updated in 2015).

Layzer emphasized the use of language that signals values, and values undergird all arguments, along with issues that seem salient enough to be worth any policymaker’s time. Although salience is the result of language (text, visuality) spread widely enough to be significant.

She begins with the thesis that

(1) environmental policy conflicts almost always concern fundamental differences in values, and (2) the way problems are defined and solutions depicted plays a central role in shaping how those values get translated into policies…Nearly all environmental policy disputes are, at heart, contests over values. To the casual observer, these conflicts may appear to revolve around arcane technical issues, but in fact almost all of them involve a fundamental disagreement over how humans ought to interact with the natural world.

and Layzer closes the central portion of the chapter with a paragraph that led me to “and HERE WE ARE TODAY, on the dark side of “low-profile modifications to environmental protections:” Is there ever a light side?

One of the most effective low·profile tactics legislators can employ is to attach a rider–a nongermane amendment-to must-pass legislation. Such riders can prohibit agency spending on particular activities, forbid citizen suits or judicial review of any agency decision, or make other, more substantive policy adjustments. The president also has a variety of tools with which to change policy quietly and unilaterally: executive orders, proclamations, presidential memoranda, and presidential signing statements. 97

Administrators have numerous low-profile options for modifying policy as well. They can change the way a law is implemented by instituting new rules or repealing or substantially revising existing ones; they can also expedite or delay a rulemaking process. In formulating a rule they can choose to consult with (or ignore) particular interests or to infuse the rule-making process with a new analytic perspective. They can alter the implementation of a rule by adjusting the agency’s budget; increasing, cutting, or reorganizing personnel; taking on new functions or privatizing functions previously performed by the bureaucracy; hiring and promoting, or demoting and transferring, critical personnel; creating new advisory bodies or altering the membership of existing panels, or adjusting the rules by which such groups reach closure; adjusting agency operating procedures through internal memos and unpublished directives; and reducing or increasing the aggressiveness with which criminal and civil violations are pursued. 98

The common feature of low-profile policy challenges is that it is difficult to garner publicity for them and therefore to make them salient. The more arcane they are, the more difficult it is to mobilize resistance. And if successful, low-profile challenges can result in “gradual institutional transformations that add up to major historical discontinuities.”

97-98. Layzer, Open For Business.99. Wolfgang S~k and Kathleen Thelen, “Introduction; Institutional Change in Advanced Political Economies,” in ed. 99. Wolfgang Streed and Kathleen Thelen, Beyond Continuity: lnstitututional Change in Advanced Political Economies (New York: Oxford University Press, 2005)

I am already despondent, but this study will help me understand what’s happening. I keep thinking about Pruitt at the EPA and Zinke at the DoI. Why is it that they were able to get away with so much behind closed doors, and in bold reversals? It seems that many of the mechanisms that Layzer outlines in the book are wither being ignored, or no defense mechanisms were in place to defend environmental protection laws from dismantling?


How much did Trump alter the process, and is it so regressive we’ll be years to gain back any protections?

Some concepts I’m interested in (as an artist) are

  • standing.” the concept of permitting almost any group to challenge agency regulations in federal court whether the challengers are directly affected or not by the agency’s actions
  • softening up.
  • environmentalists vs cornucopians. Both proponents and opponents of hazards to the environment that come online via scientific inquiry (and also via citizen and journalistic exposures?) use a technique of AMPLIFICATION: the proponents cite worst-case scenarios, and the opponents amplify the uncertainties and dissenting views.