I posted a short piece at Chinafile.org last week on China’s food safety challenges. The occasion for the post was the arrest of 63 people in China for selling fake lamb meat made of rat, fox, and other meats. The “conversation” includes comments/responses from Isabel Hilton (ChinaDialogue.net), John Balzano (BU Law), Alexa Oleson (formerly of AP), and Jeremy Goldkorn (Danwei.org).
I’ve included my post in full below, but take a look at the Chinafile page for the full discussion.
Norris Cecil Hundley Jr., a former resident of Pacific Palisades, passed away peacefully on April 28. He was 77. Born to Norris and Helen Hundley on October 26, 1935 in Houston, Texas, Norris is survived by six younger siblings… Norris graduated from Whittier College in 1958. After receiving his Ph.D. in history from UCLA, he taught at the University of Houston for a year before returning to UCLA in 1964. He was a professor of American history at UCLA from 1964 to 1994, and was a renowned scholar of water rights in the west. Professor Hundley was editor of the Pacific Historical Review for almost 30 years (1968-1997), and instrumental in shaping the field of the American West as well as the Pacific Rim through his introduction of new scholars and fields to this leading journal.
“Instrumental” doesn’t really describe it. Hundley practically invented the professional history of water in the American West. I first encountered his work with The Great Thirst (1988, rev. 2001), a monumental survey of California water history, and really sort of Hundley’s summa. One of his other books, Water and the West: The Colorado River Compact and the Politics of Water in the American West (1975, rev. 2009), remains the best account of the creation of the Compact, and necessary reading for water policy analysts, lawyers, and really anyone with an interest in the tangled and fraught politics of the Colorado River. One point that emerges out of this latter book is that the Supreme Court just botched it when, in Arizona v. California, 373 U.S. 546 (1963), it restricted California’s rights to 4.4 million cubic feet, a decision we are still living with. (Interestingly, we still lack a good history of the Supreme Court case itself, a situation I hope to remedy in a couple of years.). This doesn’t begin to describe his output: more than 100 books and essays. I feel guilty that I had not heard earlier of his death.
One thing that set Hundley apart is that he understood law in a deeper way than most historians without legal training. (Historians rightfully complain about the converse, i.e. lawyers not understanding history). The Great Thirst treats many key decisions differently than lawyers would, but he gets the doctrine right, which is more than can be said for lots of lawyers as well.
I corresponded briefly with him several years ago about groundwater rights in California, and a few years after that, I got an e-mail out of the blue from him pointing me to some recent newspaper articles concerning the issue. He took care with interact with younger scholars. I wanted to pick his brain more extensively, but then he fell ill and moved to Montecito, where he died, surrounded by his family.
Rest in peace.
Republican judges are continuing to do their best to hamstring the Obama Administration: six days ago, the Third Circuit joined the DC Circuit in restricting recess appointments to intersession recesses. Intrasession recesses, which, as the Court noted, were made routine under Ronald Reagan and used nearly 150 times by George W. Bush, are now unavailable. (The name of the case is NLRB v. New Vista Nursing & Rehabilitation). Although it’s always hazardous to make predictions, I think that the odds are now that we will not see an EPA Administrator until the end of December (if then) unless Democrats finally lose patience with continuing GOP obstruction and reform the filibuster.
The Third Circuit’s opinion is a wonderful piece of judicial activism. At its heart, it essentially says that the recess appointment power should be construed as narrowly as possible because it represents an end run around the balance of powers between Congress and the President. It freely concedes that nothing in the text or history of the notion of a Senate “recess” dictates this result, but that somehow allowing intrasession recesses would endanger the balance between Congress and the President, and would yield an absurd result. Apparently, the record-breaking use of the filibuster by Republicans is not absurd, and presents no problem. The fact that Presidents have been making intrasession recess appointments for a century is irrelevant as well. Republican threats to block the appointment of executive officers unless statutes are rewritten also is no cause for concern. Presidential attempts to circumvent these tactics through the use of recess appointments, however, constitutes a threat to the Republic. It’s a theory.
The Obama Administration is partially to blame for this mess. It insisted on appointing members of the National Labor Relations Board when the Senate was actually in session. Senate Democrats wanted to recess, but House Republicans refused to concur — a first, in my recollection. And the administration, instead of using the President’s power under Article II, Section 3 to settle the disagreement, went ahead with the bizarre notion that the Senate is in recess even when it is holding pro forma sessions. This represents an excellent example of the combination of hyper-risk-aversion, irrationality, cowering, and aggrandizement that has come to characterize its legal policy, particularly surrounding appointments.
Two points are in order now:
1) In typical fashion, the Third Circuit split on partisan lines, with two GOP appointees voting to strike down the recess appointment power, and the Democratic appointee voting to uphold. The two GOP judges do not seem to be extreme partisans, and have no track record (as far as I can tell) of ideological rulings, unlike their counterparts on the DC Circuit. But that is part of the point. We now live in a world where positions that seemed crazy just a few years, or even several months, ago, are now seen as unremarkable if you are on one team or another, particularly if that team is the Republican Party. There is almost no common ground between the parties on the most basic matters. In any political community, that is scary; in a democracy, it is genuinely perilous; in a constitutional system like ours that requires a certain amount of consensus, in Jefferson’s words, it “makes me fear for my country.”
2) Over at Volokh, my old law school classmate John Elwood has some thoughtful reactions to the opinion. John argued during the Bush Administration that intrasession recess appointments were constitutional; he has the integrity and common decency not to repudiate that now. But one of his comments seems a touch questionable to me: “Whatever the odds were that the Supreme Court would deny cert. in Noel Canning v. NLRB [the DC Circuit opinion striking down intrasession recess appointments] – and I’d say they were small to begin with — they just got smaller today.” I’m not so sure. The rational thinker in me says that given the cloud of uncertainty over federal agencies, the circuit split, and the major constitutional issues involved, there is no way that the Supremes don’t grant cert. On the other hand, I can easily see the five right-wing justices decide that they will let the Obama Administration suffer, and when a Republican gets back into the White House, they can deal with it then. The four centrists can force their hand, but then the Furious Five can simply dismiss the case as improvidently granted. I wouldn’t say that that will happen, but in our current political culture, it’s a distinct and reasonable possibility. If it happens, you heard it here first.
Following closely on the heels of Ann’s argument concerning the flaws of the Keystone XL DEIS came a NYT story from John Broder with an interesting suggestion: if the administration approves the pipeline, then it should do something else in order to advance the battle against climate change:
[C]ould some kind of deal be in the offing — a major climate policy announcement on, for example, power plant regulation or renewable energy incentives — to ease the sting of the pipeline approval?
I’ve suggested such a deal myself. Administration officials deny the possibility, stating that Keystone will be considered on its own merits and not anything else. This reflects much of the administration’s hyper-risk-averse policy approach. But now that the GOP is spending its time inventing fake administration scandals, the White House might finally get it into its head that appeasing Republicans will do it about as much good as it did Neville Chamberlain, so perhaps something more ambitious is in order.
The problem with a deal such as mooted by the Times, however, lies in its legal structure. If the administration issues a permit for Keystone, and then issues regulations concerning power plants, then both will be challenged by their opponents. In any event, Ann suggests that the whole thing puts the administration in a “deep bind”. I’m less convinced of that — it would be a windfall for the administration to approve the thing and then have a court strike it down — but even if Ann is right, there is a way out that also happens to be better policy.
So here’s a proposal: why not recirculate the Keystone DEIS as part of a broader package of climate policies? The theory in this case is to call opponents’ bluff. Republicans claim that they desperately want Keystone. If they sue over a broader DEIS, then at the very least it undermines the political saliency of it: “for years, the right wing has demanded an approval of Keystone. We gave it to them, and now not only is it not good enough, but they are suing us over it.”
This is really just a fancy way of advocating a “poison pill” strategy, but in this case, it makes policy sense. It is the embodiment of the notion that I have discussed before: approve Keystone as part of a broader climate policy.
Could the administration do this legally even if it wanted to? I don’t know. Different organic statutes give agencies regulatory authority over international pipelines and over domestic environmental and energy policy. But it doesn’t seem to me that that is a reason why a combined EIS might not be in order. In much environmental review law, an EIS can be attacked for “piecemealing” a problem, i.e. taking it in small bits so as to lose the broader environmental impacts that a project presents. That seems to be precisely what is happening with Keystone. In any event, the whole point of the environmental review process is to inform the public and decisionmakers: combining various aspects of energy and climate policy into an overall EIS would accomplish exactly that.
To be sure, it would also mean that the Keystone project would have to be delayed as the other pieces of the administration’s climate policy come into play. But one could argue that that is a feature, not a bug. It thus works politically and on policy grounds. That’s rare enough nowadays that the administration should consider it.
Tomorrow, Los Angeles voters go to the polls to elect a new Mayor. (At least a few of them, anyway: current estimates predict only 25% turnout, about which more later). In September, New Yorkers will do the same. And depending upon the way things turn out, political and cultural reporters could have a field day.
If Christine Quinn and Wendy Greuel win in their respective cities, we will have female mayors of both cities for the first time. And the press will have a lot of fun with it, because the two women seem to epitomize their cities’ personalities. Quinn is famously nasty and vicious, character traits she is now trying to ameliorate at least publicly. Much less famously, but just as truly, Greuel is quite nice: I’ve known her for nearly 20 years, and you can’t deny that she is personally a very nice person.
And if you think about it, that is true more broadly. If Anthony Weiner runs for NYC mayor, we’ll get another jerk trying to get to Gracie Mansion. Greuel’s rival, Eric Garcetti, whom I’ve also known for a long time, is likewise very friendly and nice. Even the campaign by realistic standards has been pretty tame.
If you think about New York mayors, they are hardly aiming for Mr. Congeniality: Ed Koch, Rudy Giuliani, and even Michael Bloomberg aren’t necessarily the sort of person you’d want to hang out with. But on the left coast, Tom Bradley almost epitomized mellow moderation; Antonio Villaraigosa is probably too personally charming for his own good; Jim Hahn might not have been the sharpest pencil in the cup but is a genuiunely nice guy; even Richard Riordan is pretty friendly and cordial. David Dinkins, of course, was notably polite and courtly — and seemed out of his element because of it.
Why is this? Is it just New York Nasty and Los Angeles Nice? Maybe, but perhaps this is something bigger going on here.
New York mayors wield vast power. They control huge departments, manage an enormous budget, and dominate the city politically. New York City comprises five different county governments and thus contains the counties’ power. The New York mayor’s problem is keeping control over the whole thing, not to mention corralling a notoriously-fractious urban political party (and sometimes more than that if they have the Liberal or Conservative endorsement). The Mayor also plays a major role in appointing the Board of Education. Hizzoner has to knock heads to get anything done.
In Los Angeles, on the other hand, the Mayor is relatively weak. Los Angeles city government is dominated by civil service personnel, whom the Mayor can’t just order around. Before 1992, this was even the case with the Police Department: I distinctly remember my east coast friends saying to me, “If Tom Bradley hates Daryl Gates so much, why doesn’t he just fire him?” Answer: he couldn’t. And he still can’t: the police chief has a five-year term. Even with other departments, the Mayor can’t appoint dozens and dozens of officials: instead, he appoints usually five-member volunteer commissioners, who, because they are volunteers, are usually dominated by professional civil service staff. That is not a recipe for strong executive leadership.
The Los Angeles mayor has no control over the school district or the Board of Education. The Los Angeles City Council only has 15 members, making each councilmember the monarch of his or her district; in New York, there are so many councilmembers that they comparatively little power, although not negligible. The City of Los Angeles has no control over the vastly bigger County of Los Angeles. The Mayor of New York can call up the Brooklyn boroough President to berate and threaten him: in Los Angeles, the only way the City get the County to what it wants is through a lawsuit.
Or persuasion. The Mayor of Los Angeles has to persuade all these other constituencies to do what he or she wants: they can’t bully or force them. Los Angeles elections are nonpartisan, and so the Mayor doesn’t even have a political organization to use. The only way a Los Angeles Mayor will be effective will be through the patient and often-maddening business of assembling political coalitions, community groups, public sector unions, developers, etc. A screamer in Los Angeles City Hall is someone who literally has no chance of success.
No wonder, then, that voters seem so uninterested: it’s not abundantly clear what precisely the Mayor is supposed to do, a condition that the early 20th century Progressives who framed the Los Angeles charter wanted.
The political scientist Kenneth Waltz, who died last week at the age of 88, made a similar point about the personalities of Presidents and Prime Ministers. A President has to try to use the power of the bully pulpit and his dominance over the executive branch to get things done. A Prime Minister, on the other hand, has to use persuasion to maintain his party coalition — if he doesn’t, he’ll get kicked out by his own caucus. I think that that works here.
Whether Garcetti or Greuel wins tomorrow, the next Los Angeles mayor will be a pretty nice person. Whether Quinn or Weiner or someone else wins in New York, the next New York mayor will probably be something of a jerk. But the political structure will have as much to do with this as any tired cultural stereotypes.
And what does this have to with environmental law? Well, aside from the important functions that cities play in environmental policy, it also points to the way in which structural forces can help determine the behavior of political and bureaucratic actors. You can look at ideology, or interest groups, or history, or a variety of other things, but one of the best ways to try to predict and explain behavior is to examine structural incentives. As Terry Moe wrote in a classic essay more than 20 years ago, bureaucratic structure not only represents a fierce battleground for interests, but once it is in place, it conditions what those bureaucracies do. City Hall needs that analysis as much as OSHA or the EPA.
There are uncertainties about climate science such as tipping points and feedback effects. But these pale in comparison to the biggest source of uncertainties: people. Here are some of the major things we don’t know and really can’t know about future society:
- Will economic growth continue, and if so, how quickly and how uniformly? Richer societies can adapt more easily to climate change, and in a world of high growth we may have less reason for additional investments to aid future generations. Economic models largely assume that the economic growth of the past two centuries will continue for at least the next century or two. But we obviously can’t know this for sure.
- Is the world heading toward a peaceful, democratic future, or one characterized by wars, revolutions, and dictatorships? Our chances of coping with climate disruption (not to mention having high growth) are a lot better in the first scenario. The great human disasters of the last century were due to failures of governance — think of the millions killed in World War II or the Great Leap Forward.
- Will climate change interfere with economic growth or political progress? Will climate change disrupt economic growth? Will climate disruptions cause international instability? Those could be far more costly to society than the physical impacts of climate change.
- Will we choose to decarbonize the global economy? Along with the pathway for economic growth, the extent of our determination to control emissions will determine future atmospheric concentrations of greenhouse gases. That’s a key uncertainty about future climate impacts.
It’s no news that human behavior is hard to predict. That’s just a fact of life. But in the case of climate change, the problem is especially severe because we’re dealing with human nature on a global scale and far into the future. The best-case scenario is one of growing prosperity, peace, and freedom — but we can’t assume that’s the future we’ll actually encounter.
Cross-posted on CPRBlog.
People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he’s not convincing his political opponents — he doesn’t appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn’t perfect, but that shouldn’t be the test. EPA should be allowed to issue its guidance, and to correct it when and if experience shows that to be necessary.