Literary Resources

Vol. 26 No. 3

Literary Resources features reviews of books and periodicals of interest to the environment, energy, and resources bar.

The Winter 2012 issue reviews the following books:

How the Government Got in Your Backyard: Superweeds, Frankenfoods, Lawn Wars, and the (Nonpartisan) Truth About Environmental Policies

Managing California’s Water: From Conflict to Reconciliation

Principles of Constitutional Environmental Law

How the Government Got in Your Backyard: Superweeds, Frankenfoods, Lawn Wars, and the (Nonpartisan) Truth About Environmental Policies

Jeff Gillman and Eric Heberlig

Timber Press, 2011

The college idealists who fill the ranks of the environmental movement seem willing to do absolutely anything to save the biosphere, except take science courses and learn something about it.

— P. J. O’Rourke
(as quoted in How the Government Got in Your Backyard)

“Don’t be one of those people” caution authors Jeff Gillman and Eric Heberlig. According to the authors, the purpose of How the Government Got in Your Backyard is “to encourage you to think about the possible benefits and drawbacks of different environmental policies that our government could adopt and to consider factors that you may not have considered before.”

In their introduction, the authors observe,

Polarization on the environment is not just a matter of party politics. It’s also based on the fact that the mix of environmental issues that we face has changed. Early environmental laws focused on broad goals that were highly popular—saving scenic places and cleaning the air and water—rather than the means or the costs of achieving them. Today, the problems seem much more complex. If we have difficulty understanding global climate patterns, how can we predict with confidence the ecological and economic effects of our efforts to control them? Genetically modified organisms seem pretty safe at the moment, and they reduce the use of dangerous pesticides, but will we ultimately find that they are “Frankenfoods” that damage human or ecological health? Today’s environmental issues practically define the word uncertainty, which makes decisions hard for those who live in the political world where one wrong move can lose an election.

The authors relay two extreme perspectives:

In general, left-wing environmental policies favor strict government regulation of business. This preference is based on the assumption that businesses are only motivated by short-term profits, and will always seek to get out of their civic responsibility to keep the environment clean and its inhabitants (including us) safe if it costs them more money. . . . They tend to favor regulation by the federal government based on the belief that state and local governments don’t have the power or the backbone to take on their own major employers (but they’ll make an exception when state regulations are tougher than federal regulations). . . .

Right-wing environmental policies tend to favor inaction, especially when it is unclear whether a particular activity causes damage. When they do favor action they tend to trust the businesses or individuals to do the right thing, believing that the same environmental goals can be achieved at less cost if the government stays out of it and allows businesses some flexibility. . . . Generally, right-wingers prefer state and local government action to federal government action, but they are willing to accept national standards if they are less costly to business than trying to meet the differing requirements imposed by fifty different states. . . .

The first chapter examines “why and how politicians and other participants in the policy-making process use and misuse scientific information.” In the following 10 chapters, the authors explore some of the most current environmental issues. Each begins with a question: Organic Food: Safer, Friendlier, Better? Pesticides: How Dangerous is Dangerous? Fertilizers: Good for the Crops, Bad for the Water? Alternative Energy: Is Ethanol Overrated? Genetic Engineering: A Time Bomb Waiting to Explode? Plant Patents: Protecting Plants or Profiteering? Invasive Plants: Kill the Aliens? Legal and Illegal Plants: Why Are the Bad Guys Bad? Local Restrictions: Is Your Backyard Really Yours? Global Warming: Natural or Man-made?

For their analysis, the authors developed a rating system “to quantify the differences between the liberals and the conservatives.” In each issue, the authors examine the underlying scientific information, applicable governmental policies, and policy options. For each policy alternative, the authors “explain which side is likely to favor or disfavor the policy and why.”

In their conclusion, the authors note that “science and government are dynamic forces . . . more research and more politics have occurred . . . and more topics have arisen.” They exhort “[g]o find them. Think of other possibilities. Let this be a starting place, not an ending.”

Managing California’s Water: From Conflict to Reconciliation

Ellen Hanak, Jay Lund, Ariel Dinar, Brian Gray, Richard Howitt, Jeffrey Mount, Peter Moyle, and Barton “Buzz” Thompson

Public Policy Institute of California, 2011

The history of California in the twentieth century is the story of a state inventing itself with water.

— William L. Kahrl, Water and Power, 1982

As noted in the preface, “California has always had water conflicts, and as a semiarid state it always will. It is easy in these troubled times to assert that California is doomed, for this and other reasons, and that nothing can be done about it.” However, the authors observe, “California has thrived more than almost any other part of the world despite scarce water supplies, and there is little reason why prosperity cannot continue, despite new challenges, with suitable adaptations in policy and management.”

Managing California’s Water: From Conflict to Reconciliation “outlines an ambitious reform agenda to help put California water management on a more constructive and hopeful path.” The authors set the stage with an introduction that outlines California’s struggle to manage its water resources effectively, and they identify “five factors—increasingly obsolete design of its water management system, reduction in federal and state funding, changing climate, the challenge of incorporating environmental protection and sustainable management of the state’s aquatic ecosystems, and lack of consensus on the options for future reform”—that have created a “dysfunctional impasse.”

The authors envision a reform agenda pursuant to which “California moves beyond the current Era of Conflict and continuing deterioration toward an Era of Reconciliation, in which water is managed more comprehensively and more flexibly for the benefit of the economy and the environment, meeting broad social goals of balance, efficiency, and fairness.” The following five “broad societal goals” are identified: public health, safety, and welfare; ecosystem health; balance; efficient allocation and use; and fairness. According to the authors, “key elements of the reform agenda” include the following:

Ecosystem reconciliation. To reconcile human and ecosystem uses of water, the historical approach of desperate actions to preserve single species must give way to approaches that more broadly and systematically aim to restore ecosystem functions.

Integrated management portfolios. To promote adaptive capacity, managers should use diversified and integrated water management portfolios, rather than traditional single-investment approaches, and should strive to better integrate California’s fragmented networks of infrastructure and operations for managing surface and groundwater supplies, flood risk, water quality, and aquatic habitat.

Water as a public commodity. To more efficiently manage water for the economy and the environment, the state should build on current efforts to manage water as a public commodity, promoting reasonable use and flexibility in the face of changing conditions. This will require developing more robust fee-based funding to support public aspects of the water system, including environmental management.

Decision-capable and adaptive governance. To lead reconciliation under changing conditions, California needs more adaptive, responsive, and technically capable water governance institutions. This includes better integration of local, regional, and state efforts and state agencies with more streamlined authority and better mechanisms for protecting the public trust in water. California needs to rebuild the capacity of state institutions to collect, analyze, and disseminate scientific and technical information necessary to the development of a forward-looking, balanced water policy.

While many of the proposed changes could “be implemented within existing legal authority,” the authors acknowledge that “some will require changes in laws and institutions [and m]ost will require strategic shifts, including new forms of collaboration among California’s myriad local and regional water and land use agencies, as well as new forms of leadership by both the state and federal governments.”

Divided into three parts, Part I examines the floods, droughts and lawsuits that shaped California’s water management, the “complexity and fragility of the current system, and key drivers of change that will exert increasing pressure” in the future. Part II examines “major challenges and promising approaches for managing water in the future.” In Part III, the authors explore “strategies for implementing policy reforms.”

A glossary and extensive reference section are included.

Principles of Constitutional Environmental Law

James R. May, ed.

ABA Section of Environment, Energy, and Resources, 2011

Courts change. The Constitution and its provisions remain. That, by itself, is reason for hope.

— Oliver A. Houck,

Foreword: The Missing Constitution in
Principles of Constitutional Environmental Law

In his preface, James May observes, “[m]etaphorically, the Constitution is the straw that stirs the drink of environmental law.” He notes,

It is difficult to imagine any environmental law or policy bromide that does not contain soluble constitutional components. The most pressing environmental challenges of the day—climate change, species loss, and pollution, among others—may be imbued with contested constitutional questions of separation of powers, executive and judicial authority, federalism and individual rights. . . . The junction of constitutional and environmental law is evident from the boardroom to the courtroom, from the vast hallways of administrative agencies to legislative halls in Washington, D.C., and in state capitols throughout the country.

Principles of Constitutional Environmental Law includes a foreword by Oliver Houck, which per May “reminds us that the connectedness between constitutional law and environmental law has evolved from nearly nothing to nearly everything.” Houck observes,

Nobody thought about the Constitution. Well, almost nobody. When the first wave of environmental protection swept America in the early 1900s—called “conservation” at the time—the president and Congress launched a series of government programs to save eroding soils, preserve forests, create parks, develop water, and manage wildlife, all with new statutes and unbounded faith in federal agencies to carry them forward. By and large the agencies did, particularly in their early years, which worked fairly well until we woke up some decades later to the specter of oil on beaches, rivers that caught fire, smog that shut down cities, and the prospect of a Silent Spring.

Houck continues,

Starting in the 1960s, Congress again responded with a new blitz of statutes that were frankly environmental this time and targeted far more than the federal domain. They created new agencies, announced aspirational goals such as “zero discharge,” prescribed and prohibited actions, set deadlines and standards, and, having seen the capture of federal agencies by the very interests they were supposed to be regulating, vested power in ordinary citizens to enforce these requirements in courts of law. The conservation movement at the beginning of the twentieth century had been a dramatic assertion of federal power over the landscape. The environmental movement that followed, and in particular the notion of citizen enforcement, was a revolution. With laws like this, who needed a Constitution?

Houck describes efforts toward a constitutional amendment pertaining to the environment, but observes,

As it turned out, we did [need the Constitution]. The new wave of environmental protection was not greeted everywhere with applause. Industry feared it, as did private developers of all stripes and a phalanx of federal departments that had served them unquestioningly for decades. Compliance with these new laws of course took time and cost money, but there was more to it; many things in life we accept routinely take time and money as well. Environmental laws, by their very existence, also carried the latent accusation that these industries and agencies, the idols of American enterprise (e.g., U.S. Steel, the Tennessee Valley Authority), were abusing us instead. The accusation was provocative, and it reached members of the judiciary who had devoted their practice to the defense and promotion of these same interests. Ironically, an argument made in the early 1970s against a constitutional environmental amendment was that it would require courts to interpret it, introducing a wild card that could turn antagonistic at some point in the future. The argument proved half correct. What it overlooked was that the judiciary could turn as antagonistic without a constitutional amendment, and begin to tear the fabric of environmental law.

Houck continues,

The hostility of the Supreme Court, as a whole, to environmental issues is a matter of record. . . . One unforeseen consequence of abandoning a constitutional amendment is the extent to which judges, instinctually suspicious of environmental policies, have felt free to use the existing Constitution to limit them. That phenomenon is at the center of this book.

According to May, “[t]his book aims to provide a comprehensive account and analysis of the growing and increasingly important intersection of constitutional and environmental law.” The book is divided into four parts. Each chapter begins with a practice tip and ends with a case study. Part 1 covers federal and state authority by examining the commerce clause, the Nondelegation Doctrine, the Take Care Clause and the Unitary Executive Theory, environmental federalism, the dormant Commerce Clause, and federal preemption. Part 2 addresses judicial review, including standing and the Political Question Doctrine. Part 3 explores individual rights by examining the Takings Clause and environmental law and due process challenges. The book concludes with Part 4, which examines emerging constitutional issues in environmental law.

An extensive table of cases is included.

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