Environmental Governance Reconsidered, second edition: Challenges, Choices, and Opportunities

Environmental Governance Reconsidered

American and Comparative Environmental Policy

Sheldon Kamieniecki and Michael E. Kraft, series editors

For a complete list of books in the series, please see the back of the book.

Environmental Governance Reconsidered

Challenges, Choices, and Opportunities

Second Edition

edited by Robert F. Durant, Daniel J. Fiorino,and Rosemary O’Leary

The MIT Press

Cambridge, Massachusetts

London, England

© 2017 Massachusetts Institute of Technology

All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data

Names: Durant, Robert F., 1949- | Fiorino, Daniel J. | O’Leary, Rosemary,

1955-

Title: Environmental governance reconsidered : challenges, choices, and

opportunities / edited by Robert F. Durant, Daniel J. Fiorino, and

Rosemary O’Leary.

Description: Second edition. | Cambridge, MA : MIT Press, [2017] | Series:

American and comparative environmental policy | Includes bibliographical

references and index.

Identifiers: LCCN 2016035679 | ISBN 9780262533317 (pbk. : alk. paper)

Subjects: LCSH: Environmental policy. | Environmental management.

Classification: LCC GE170 .E5754 2017 | DDC 333.72—dc23 LC record available at

https://lccn.loc.gov/2016035679

EPUB Version 1.0

d_r0

This book is dedicated to the memory of Gary C. Bryner and Evan J. Ringquist: Two environmental scholars and friends who left us too soon but contributed in so many ways to our field’s understanding of environmental governance.

Without the aid of others we could not secure for ourselves or supply to others the things that Nature requires.

—Cicero, On Duties, Book 1, xliv–xlv

It ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. [This,] because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new.

—Machiavelli, The Prince

Contents

Series Foreword

Preface

Introduction

Robert F. Durant

I Reconceptualizing Purpose

1 Global Environmental Governance

Regina S. Axelrod and Stacy D. VanDeveer

2 Sustainability and Environmental Policy

Michael E. Kraft

3 Energy Security

Walter A. Rosenbaum

4 Contested Federalism and Fracking

Barry G. Rabe

II Reconnecting with Citizens and Stakeholders

5 Global Civil Society

Paul Wapner and Anne J. Kantel

6 Environmental Justice

David M. Konisky

7 Risk, Environmental Governance, and Emerging Biotechnology

Jennifer Kuzma

8 Environmental Collaboration and Conflict Resolution

Kirk Emerson, Tina Nabatchi, and Rosemary O’Leary

III Redefining Administrative Rationality

9 Regulatory Innovation and Change

Daniel J. Fiorino

10 Regulation-by-Revelation

Robert F. Durant

11 Retrospective Regulatory Analysis

Richard D. Morgenstern

Conclusion

Robert F. Durant

Contributors

Bibliography

Index

Series List

Series Foreword

More than forty-five years have passed since the federal government first began to address seriously the range of pollution problems facing the United States, from air and water quality to the impact of pesticides and toxic chemicals on the environment and human health. As has been widely discussed over the past several decades, nearly all of this bedrock legislation was grounded in a certain confident outlook about the problems that were faced and a commitment to rely on one policy strategy in particular: direct command-and-control regulation. The core statutes from the 1970s proposed bold and ambitious national standards and deadlines for achieving them that later often proved to be unrealistic.

The first wave of environmental policies achieved certain immediate political aims and eventually helped to improve the country’s environmental quality. There is little question that great gains have been made in air and water quality and that public health risks have been substantially reduced, notwithstanding remaining challenges. In addition, the policies of this era helped to establish new institutions and governance mechanisms that have significantly improved our capacity to manage the environment.

Despite these important achievements, business groups, economists, a diversity of policy analysts, and environmentalists have criticized the early laws as inefficient and ineffective, excessively burdensome, costly, and inflexible. State and local officials often joined in the chorus, particularly on concerns over flexibility, and they argued that state efforts at implementation should be judged against the divergent social, political, economic, and environmental conditions that exist across the country. Moreover, critics complained that various stakeholders, including average citizens, were being excluded from the regulatory process.

As a consequence, legislation passed in the late 1970s and afterward incorporated reforms designed to make implementation more flexible. The introduction of market mechanisms represented an attempt to increase the efficiency and cost-effectiveness of environmental regulation. State and local governments were given more say on how to manage pollution problems within their specific jurisdictions. Today, rulemaking in the US Environmental Protection Agency (EPA) regularly includes various stakeholders in the process prior to the announcement of draft regulations for public comment. In addition, citizens and community stakeholders are more involved than before in the development of environmental programs, such as watershed management plans, at local and regional levels. Scholars and practitioners continue to discuss and debate these and other results-based reforms.

Although much progress has been made in reducing emissions and protecting natural resources, questions continue to be raised about whether such regulatory reforms are capable of fully resolving the pollution and natural resource problems that the United States will face in the rest of the twenty-first century. Given the amount of time that has passed, we should have enough theory, data, and information to assess accurately the success of these reforms. More generally, an opportunity exists to reevaluate the country’s environmental goals and to develop pragmatic governance approaches to achieve a truly sustainable society. Analyses along these lines may help to refine existing environmental governance reform theory and identify future research avenues. Rather than allow personal impressions and politics to determine future approaches to environmental governance, we need to research carefully what works and what does not work before we decide whether we should continue to implement present reforms or adopt new ways to control pollution and manage natural resources.

This second edition of Environmental Governance Reconsidered: Challenges, Choices, and Opportunities pursues this line of inquiry by providing students, scholars, and policymakers with an extensive review of research on a novel combination of topics within the environmental policy arena. This edition offers a fresh examination of environmental governance at a time of rising concern over new problems—most notably, climate change and heightened political conflict—both in the United States and globally that often create significant barriers to action. As the editors observe, it is even more important now to get environmental governance right for the twenty-first century. Nor is this simply an environmental problem. As Jan Mazurek observes, The issue is, how do we decarbonize the electricity sector, while keeping the lights on, keeping costs low and avoiding unintended consequences that could make emissions worse.¹

As in the first edition, the book focuses on results-based environmental governance reform initiatives. Among other things, this volume offers insights regarding the conditions under which governance reforms are likely to succeed, the obstacles and facilitating factors concerning their implementation, the likelihood of their continued relevance and importance, and the contradictions that arise when the reforms are viewed collectively. As the editors correctly note, current understanding about the promise and performance of the reform initiatives analyzed in the various chapters too often relies on impressions, interpretive case studies, and best practices research. Thus, future investigation will be required to advance both practice and theory building. Accordingly, the contributors to this study, all experts in their fields of specialization, suggest areas in which scholars should direct their research and analysis.

Following an in-depth, critical discussion of the perspectives taken by reform-minded policy analysts, the editors identify three primary spheres that must be considered for building the results-based sense of common purpose they see as necessary for efficient, effective, equitable, and democratically accountable environmental governance. Specifically, the chapters in the book address the need to reconceptualize purpose, reconnect with stakeholders, and redefine administrative rationality. Those who read this important collection will learn how successful reformers have been in advancing their results-based environmental governance agenda, as well as the likelihood that their agenda and its various elements will succeed in the new century.

The analyses represented in this collection illustrate well our purpose in the MIT Press series in American and Comparative Environmental Policy. We encourage work that examines a broad range of environmental policy issues. We are particularly interested in volumes that incorporate interdisciplinary research and focus on the linkages between public policy and environmental problems and issues both within the United States and in cross-national settings. We welcome contributions that analyze the policy dimensions of relationships between humans and the environment from either a theoretical or empirical perspective.

At a time when environmental policies are increasingly seen as controversial and new and alternative approaches are being implemented widely, we especially encourage studies that assess policy successes and failures, evaluate new institutional arrangements and policy tools, and clarify new directions for environmental politics and policy. The books in this series are written for a wide audience that includes academics, policymakers, environmental scientists and professionals, business and labor leaders, environmental activists, and students concerned with environmental issues. We hope they contribute to public understanding of environmental problems, issues, and policies of concern today and also suggest promising actions for the future.

Sheldon Kamieniecki, University of California, Santa Cruz

Michael Kraft, University of Wisconsin-Green Bay

American and Comparative Environmental Policy Series Editors

Note

1. Quoted in Porter, How Renewable Energy Is Blowing Climate Change Efforts Off Course.

Preface

Over a decade has passed since MIT Press published the first edition of Environmental Governance Reconsidered (EGR). As such, we thought it time to update many of the chapters in the first edition and add topics that have become more prominent in environmental governance since the 2004 edition. Certainly, as President Donald J. Trump takes office in Washington promoting an aggressive prodevelopment and ENR deregulatory agenda, much remains the same in the world of environmental governance. However, much also has evolved and changed since the first edition of EGR.

For starters, US statutes and administrative actions regarding the Clean Air Act, Clean Water Act, Federal Land Policy and Management Act, and Resource Conservation and Recovery Act remain as critical to public health, safety, and the environment as ever before. So, too, do their legislative counterparts and administrative initiatives in the United States and other nations. However, major amendments or statutes have rarely been enacted in the United States in the interim that address the challenges, choices, and opportunities we identified in the first edition, nor has any integration of disparate statutes or administrative initiatives occurred. Instead, polarization in Washington has produced statutory stalemate, making the often-contested interpretation of authorities granted to agencies by existing statutes the rule rather than the exception in environmental governance. These claims of authority—and court rulings needed to resolve ensuing conflicts—are now the dominant form of US policymaking in the environmental and natural resources (ENR) arena. Nor have the regulatory capacity challenges identified in the first edition of EGR been significantly addressed. Indeed, they are arguably more severe today because of the expanding number, scope, and complexity of the responsibilities heaped upon agencies amid budget and personnel cuts, the challenges of multilevel governance, and the unstinting coarseness of political rhetoric attacking the legitimacy of ENR regulators.

But much else has evolved or gone in new directions in environmental governance since the first edition of EGR, both in the United States and internationally. Most notable is the continuation of a worldwide transformation in economic and social structures, a transition that is also prompting a climate transformation. More precisely, economic development continues to create unprecedented demands for middle-class lifestyles such as those attained by developed economies. In the process, they have provoked a record surge in energy consumption to produce those goods, services, and opportunities. These demands have been met historically by carbon-intensive energy sources that have contributed to a warming effect, which an overwhelming consensus of scientists argues is already doing damage around the world. Moreover, this effect is on track to do irreparable damage if left unchecked by a major, albeit necessarily gradual, transformation to renewable energy sources. Thus, whether these fears are exaggerated by critics or not, a much firmer link exists today between domestic and international environmental and energy policy.

These transformations, in turn, have created an even more intense sense of urgency in many—especially, scientific—quarters today about getting ENR governance right in the twenty-first century. Perhaps most significantly, this sense of urgency has spawned remedial initiatives by leaders in the business and financial communities who previously were skeptical or even opposed to ambitious ENR regulation. Granted, skepticism and doubt still remain in those industries (especially the coal industry) that stand to lose the most from aggressive action. However, a growing sense of the costs of climate change to companies’ bottom lines, as well as the profits and new markets that ambitious ENR goals and green reputations can bring to companies, has been persuasive to many more corporate leaders—but by no means persuasive enough.

Also increased in intensity since the first edition of EGR is a belief that these challenges can best be handled by what some call neoliberal environmentalism. This is a market-based approach to ENR problems that is comprised of what two leading theorists call governance by quantity (i.e., specification of total emission levels, as in cap-and-trade systems), governance by price (i.e., financial incentives such as carbon taxes or emissions trading), and governance by information disclosure (i.e., regulation-by-revelation).¹

Not everyone advocating the use of market-based environmental governance considers themselves—or is—an advocate of neoliberal economics. They are two different concepts. Nor can neoliberal environmentalism effectively address all types of ENR issues or totally replace other conventional tools of environmental governance, such as mandates, penalties, collaborative partnerships, or dispute resolution. But proponents of market-based approaches are part of neoliberal environmentalism because of their faith in markets to attenuate some ENR risks to humankind. This is not just a faith in market-based incentives but a belief in the wisdom of actually creating local, regional, and international markets to mitigate ENR problems.

Just as happened with the first three generations of reform that we discussed in the first edition of EGR, proponents of neoliberal environmentalism—alone or in combination with other tools—see it as compensating for the limitations of earlier generations of ENR reform. However, they do not see it as replacing its predecessors. Rather, neoliberal environmentalism is layered among them to create a complex regulatory edifice that is difficult to coordinate; breeds continual opposition and efforts to undercut its capacity to operate effectively; and, thus, produces halfway, halting, and patchworked results.

In considering this underperformance, one should not overlook the progress that has been made in addressing ENR issues, both in the United States and internationally. As in the first edition of EGR, much of that progress—as well as the challenges that remain—is covered extensively in this second edition. For example, we have already seen many additional green shoots blooming in such areas as sustainable development, deforestation, and pathways toward a decarbonized future. Moreover, US government policies and technical advances have combined to make green energy cheaper and more competitive with fossil fuels. Among the former are subsidies for clean energy research and deployment; among the latter are more efficient solar panels and wind turbines, improved batteries for electric vehicles, and renewable energy storage. In the process, solar power costs have declined nearly 80 percent since 2009, wind power by 60 percent, and advanced battery power by 50 percent.² That said, much more in the way of such advances is needed, plus the financing of transmission infrastructure to deliver solar power has proven challenging.³ Still, the transformations underway in societies worldwide create significant opportunities to improve public health, safety, and the environment even further if, when addressing them, we make and implement additional smart choices and alterations to existing approaches.

Granted, any progress made will continue to be a hard slog and too slow for many tastes. Indeed, on climate change, the question will be whether progress will be too little and too late to avoid catastrophic events. Progress has been hindered in the United States by a variety of factors, including partisan polarization in Congress, a culture of fear of national planning, and an antiregulatory campaign by opponents who have sown seeds of doubt and confusion about the legitimacy of the science that underpins ENR governance. As such, since the first edition of EGR, we have seen increasing reliance on state efforts; on controversial claims to expanded authority under existing ENR statutes by the Obama administration; on neoliberal environmental policy tools that are unprecedented in their scale and scope; and on leading businesses, financial institutions, insurance companies, and industry associations. For example, voluntary greenhouse gas (GHG) emission accounting has taken root in many firms but not nearly enough to ensure meaningful GHG emission reductions in the absence of other regulatory pressures. Moreover, companies have made changes that comport with traditional cost–benefit calculations, but these take them only part of the way. Efficiency gains have tended to be outpaced by overall economic growth.⁴

Internationally, progress has also occurred. However, it has been slowed by, among other things, conflicts over how much responsibility to assign to the developed and developing world for losses and damages, over the financial scale of compensation, and over how much each group must contribute to mitigate future problems. For example, the good news is that countries contributing nearly 90 percent of global CO2 emissions submitted reduction commitments (i.e., intended nationally determined contributions) in the run-up to the UN’s 2015 Climate Change Conference in Paris (also known as the twenty-first Conference of the Parties, or COP21). Not surprisingly, however, only two of the member nations of OPEC (Algeria and Ecuador) did so.⁵ Moreover, others (e.g., India) submitted reduction plans but signaled that trillions of dollars would be needed to meet them, a proportion of which would have to come from businesses and the developed world. What is more, splits within the developed and developing worlds over these issues have further complicated ambitious commitments and their implementation. At the same time, although the World Bank estimated that the forty cap-and-trade systems launched worldwide generated nearly $26 billion in revenue to nations in 2015, pricing was much lower (e.g., $6 per ton in the European Emissions Trading Scheme and target markets in Beijing and Shenzhen in China) than the $45 per ton price estimate needed to reduce carbon concentrations to avoid climate change.⁶

Still, on Earth Day in April 2016, leaders of 171 nations signed the 2015 Paris Agreement in New York City, an agreement later ratified by more than a hundred nations and that went into effect in November of 2016. This, however, was really the starting gun for implementation of the agreement in coming years. Among other things, implementation faces controversies over funding for the developing world, specific national contributions to emission reduction targets, domestic and international politics affecting those ratifying the agreement, and the need for transparency and effective monitoring.

Although generally acknowledged as a historic international agreement, some argued that history will judge [the] Paris [climate agreement] harshly.⁷ As the director of Friends of the Earth Europe put it, Instead of percentage reductions, the agreement contains only an objective for global emissions to peak by the meaningless date of ‘as soon as possible.’ Parties also agreed to ‘net zero emissions’ in the second half of the century. This is far too late, and opens the door for reliance on as yet unproven technologies.⁸ Additionally, the deal was only made possible by allowing each nation’s actions to be voluntary, although the European Union committed to making their cuts binding. This led some in the EU to argue that it should lower its ambitions.⁹ Looming above all this, too, are such things as the election of Donald Trump as president of the United States in 2016, the results of future presidential and congressional elections in the United States, and the uncertainties of the United Kingdom’s exit from the EU.

Given all this, a fundamental environmental governance problem facing societies worldwide is how best to harness for public purposes the creativity and dynamism of markets, the passion and commitment of nongovernmental organizations and international nongovernmental organizations, and the public interest-oriented expertise of career civil servants. Like its predecessor, the second edition of EGR does not afford answers to how this might be done best. Rather, it gives readers an overview of the challenges, choices, and opportunities facing societies worldwide as they try to build a results-based sense of common purpose in environmental governance. From this, readers can begin to make their own decisions about the best way or ways forward in environmental governance.

To this end, this second edition of EGR compiles the thinking of leading internationally recognized experts regarding key concepts or ideas informing environmental governance today. As in the first edition, we asked our contributors to identify why their topic is important, what we know about it from prior research, and what the future holds for it in terms of challenges, choices, and opportunities. We again arrange the topics into three categories: (1) reconceptualizing the purposes of environmental governance, (2) reconnecting with stakeholders, and (3) redefining administrative rationality. Each of these remains a major driver of the kinds of challenges, choices, and opportunities facing environmental governance today.

Where this second edition of EGR does differ from the first is in its topical coverage and contributors. In terms of coverage, we decided to update topics that remain as salient in environmental governance circles today as they were thirteen years ago. These include global environmental governance, federalism, regulatory innovation and change, environmental justice, and collaborative governance and dispute resolution. We also decided to take a slightly different direction on several original topics that remain highly salient today. These include expanding the focus from sustainability per se to sustainability governance and sustainable cities, expanding the domestic focus of civic environmentalism to global civil society, and refocusing global interdependence on the institutions and dynamics of global environmental governance. We also pivoted from a general focus on devolution of authority to the states to a more specific focus on compensatory federalism, vertical diffusion in federalism, and contested federalism, as well as reframed the chapter on flexibility toward the specifics of regulatory innovation, its link to flexibility, and the political forces conspiring against them.

We also decided to make room for especially timely topics by replacing some of those appearing in the first edition of EGR. The topics we replaced as standalone chapters were those on the precautionary principle, common-pool resource theory, pollution prevention, third-party auditing of environmental management systems, and property rights and regulatory takings. These all remain important and integral parts of environmental governance today, and contributors to this second edition continue to reference many of them in their chapters. In their places, we have added chapters on four highly salient topics: energy security; risk, environmental governance, and emerging biotechnologies; regulation-by-revelation; and retrospective regulatory policy analyses.

The second change of note in this edition of EGR relates to contributors. Much to our sadness and the field’s great loss, two of our original contributors—Gary Bryner and Evan Ringquist—have since passed away. It is to Gary and Evan that we dedicate the second edition of EGR. We also wish to thank several of the original contributors to the first edition of EGR who are absent from this edition but vital to the book’s earlier success: Lisa Bingham, Thanit Boodphetcharat, Ken Geiser, DeWitt John, Jan Mazurek, Robert Paehlke, Denise Scheberle, Edella Schlager, and Charles Wise. The legacy of their efforts in the first edition is apparent in frequent citations to their contributions in this edition, the broader literature, and incorporations of their insights into many of the chapters.

A volume of this scope acquires many debts during preparation. First and foremost, we wish to thank the authors who generously agreed to participate in our project. Without their unerring commitment to quality and receptivity to editorial direction, this second edition would never have seen the light of day. Our thanks go as well to anonymous reviewers of this edition for their perceptive comments and suggestions, as well as comments from readers of the 2004 edition for enhancing its value. We are especially indebted to Dan Mazmanian for encouraging us to do a second edition. We also wish to thank Jennifer Durant for her outstanding editorial assistance, commitment to quality throughout the publication process, and development of the book’s index. As in the first edition, her exemplary work has again added immensely to the value of this second edition. Special thanks, as well, to series editors Michael Kraft and Sheldon Kamieniecki and to acquisitions editor Beth Clevenger and her team at MIT Press, including Kathleen Hensley and Virginia Crossman. We sincerely appreciate their patience, guidance, and support.

Robert F. Durant, American University (Professor Emeritus)

Daniel J. Fiorino, American University

Rosemary O’Leary, University of Kansas

Notes

1 Newell and Paterson, Climate Capitalism, 145.

2 Grunwald, Why the Pope Is Wrong about Climate.

3 Creswell and Cardwell, Renewable Energy Stumbles Toward the Future.

4 Rosen, Here’s What Happens When Companies Actually Track Their CO2 Emissions.

5 Pashley, 9 Things We Learned from National Climate Pledges.

6 King, China Holds Key to Revive Moribund Carbon Markets.

7 Stoczkiewicz, History Will Judge Paris Harshly.

8 Ibid.

9 Ricketts, Europe Needs to Backtrack on Its Big Climate Ambitions.

Introduction

Robert F. Durant

Nearly half a century has passed since the environmental decade of the 1970s in the United States, when twelve major environmental and natural resources (ENR) statutes were enacted. During this time, policymakers worldwide have drastically scaled up their expectations of what environmental governance should accomplish domestically and internationally. With these expectations has come an expansion in the scope of responsibilities of ENR agencies and their partners internationally, as well as a much more complex and interdependent set of policy tools for executing these responsibilities.

This scaling up has been prompted by an increasing sense of urgency regarding the nature of the partly self-induced ENR risks humankind faces. Most recently, this urgency has been focused on global climate change, but mounting evidence of perils from traditional concerns (e.g., ozone, mercury, waterborne diseases) has also contributed to it. Wrought in the process has been a drastic scaling up of the complexity, multilevel nature, and controversy surrounding environmental governance in the twenty-first century.

With these, however, have come significant political conflicts in the United States and internationally. Although controversial since the environmental decade of the 1970s, polarization over ENR issues has since persistently spiraled, with disputes taking on ideological dimensions. Contributing to these conflicts have been the increasing salience and sense of urgency created by most scientists’ recognition of increasing threats to the global commons since the late 1980s. In the process, perceptions have risen that the supportive relationship between the planet and humankind globally is endangered. But this sense of urgency is not shared by all, most notably in regard to climate change where some, but not all, corporate interests have fought efforts to transform our fossil fuel-based world economy into renewable energy sources.

Global commons issues can incite these battles, but they have also reared their heads historically when dealing with such ENR challenges as air, water, hazardous waste, and timber logging regulation, as well as public land management. Typically, opponents of aggressive regulatory action are advantaged when threats can be portrayed as remote challenges where action can be postponed. Opponents gain as well when the short-term costs of action are significant while the benefits are deferred. In addition, because of the scale of commons issues and the large number of nations involved, opponents in the United States have been able to argue that America’s actions are too small to make a difference and are, thus, imprudent.

Others contest this by citing the catalyst effect US action can have on other nations, plus the local co-benefits that reducing ENR threats can have for public health and ecological quality. These will occur whether or not they diminish harm to the global commons or catalyze other nations to act. Likewise, many economically developing nations have contended that the developed world is most responsible for these threats. Not only should the latter do the most to reduce things such as greenhouse gas (GHG) emissions, but they also should compensate the developing world for current and future losses and damages.

Opponents of ambitious environmental governance actions also have sown confusion and doubt. They portray the normal way that science works—theory building through hypotheses testing and refinement—as a sign that experts do not agree among themselves and, thus, that action should be postponed. They are helped when new studies find, for example, that a pause in warming has occurred or that increased foliage resulting from global warming is absorbing CO2 at higher rates than expected (also see Durant, chapter 10). Conversely, they lampoon the claims of proponents of aggressive action that settled science or scientific consensus exists on various topics, especially on climate change. This time using the scientific method to their advantage, they argue that science is never settled but is always subject to revision. Moreover, consensus means little as some of the greatest reputations in science have been attained by challenging the consensus of experts. Proponents of concerted action counter, among other things, that the precautionary principle ought to be applied. That is, whenever agreement exists that the results of inaction would be calamitous, action should be taken as an insurance policy against these harms—as was done with the Montreal Protocol in the late 1980s to avoid the calamities of an expanding ozone hole.¹

Amid this back and forth, congressional stalemate in the United States has occurred on major environmental protection legislation since enactment of the Clean Air Act Amendments of 1990 under President George H. W. Bush. The only exception has been the reauthorization in 2016 of the Toxic Substances Control Act (officially, the Frank R. Lautenberg Chemical Safety for the 21st Century Act). In this inaction, the US system of separation of powers, checks and balances, and federalism benefits opponents and produces results that differ notably from nations with more parliamentary forms of government, especially many nations in the European Union. Philosophical divisions also exist to cause difficulties internationally. For instance, the EU has imbedded the precautionary principle in its ENR policies and in agreements with trading partners around the world.² In contrast, US regulation is premised on the principle that no harm exists unless regulators prove harm.

As such, US regulators, especially the Environmental Protection Agency (EPA) during Democratic presidential administrations, have tried to deal with environmental problems administratively. Meanwhile, Republican administrations have done the same, largely to curtail aggressive environmental action.³ These efforts are pursued by presidents through unilateral actions, most notably using executive orders, agency rulemaking, and implementation guidance documents to agencies and their partners. In doing so, they have controversially claimed expanded executive authority under existing statutes, claims typically prompting legal challenges by opponents. Moreover, using existing statutes—for example, the Clear Air Act—to address problems such as climate change is nowhere near as effective as passing legislation directed specifically at such problems. These efforts not only can come up short in dealing with these challenges, but they also can exacerbate already overextended regulatory budgets and historical implementation deficits. That is, budgets in traditional areas can be raided for new purposes, which creates gaps between the promise of the original statutes and their actual performance.

To be sure, Supreme Court verdicts in several court challenges have supported EPA’s interpretation of its authority or its related actions (e.g., Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 2007). But that support varied during the Obama presidency. For instance, other legal challenges to its claims of authority (and those of other federal agencies) have been upheld by the courts, though not the means by which it proposed to apply that authority (e.g., EPA’s authority to issue the Cross-State Air Pollution Rule in Environmental Protection Agency et al. v. EME Homer City Generation, L.P., et al., 572 U.S. ___, 2014). Still others remain undecided by the courts (e.g., challenges to EPA’s Clean Power Plan to reduce emissions from existing fossil fuel power plants and its rules related to ozone transportation across state lines, ambient ozone standards, and heavy-duty trucks) or are awaiting decisions to appeal lower court rulings (e.g., the Department of the Interior’s fracking rule). All this creates both an uncertain regulatory environment for business that clouds their investment horizons in pollution mitigation strategies (even though it is business interests that often pursue these suits), as well as uncertainty for regulators regarding their authority, planning, budget requests, and personnel needs.

Bad enough in their own right, these environmental governance problems are compounded in the United States by the absence of an organic statute that integrates environmental governance.⁴ Thus, statutes from different eras in American history and with conflicting purposes are layered one upon the other. As Christopher Klyza and David Sousa demonstrate, for example, twenty-two US ENR laws were enacted between 1960 and 1984 that conflict with pro-development statutes from earlier eras.⁵ In combination, and aside from the serious management issues they occasion, these dynamics have meant that proponents and opponents have conflicting statutory, regulatory, and legal bases upon which to ground their disagreements.

Nor is this problem limited to the United States. By one count, there are 1,190 multilateral environmental agreements and over 1,500 bilateral ones.⁶ Meanwhile, serious negotiation issues between and among nations have made it difficult to take aggressive steps on a scale and scope necessary to address commons issues. Barbara Ward and René Dubos argue that progress in making the planet, rather than individual nation states, a center of rational loyalty for all humanity has proven to be a difficult shift in value orientation.⁷ National governments and their citizens get nervous about abandoning too much of their sovereignty to international bodies and, thus, offer additional grounds for opponents to challenge aggressive action. This is especially true when the negative effects of these events on citizens (or portions of their citizens) might be small or not occur at all, when some portions of a nation will suffer while others benefit, and (again) when the immediate financial costs seem consequential.

At the same time, global commons issues also have engendered conflicts between the developed and developing world. Knotty matters have arisen over the amount of risk GHGs pose to the seas and coastal communities; the relative weight to place on mitigating (e.g., lowering emissions) versus adapting to change; fair shares of responsibility and, hence, commitments to emission reductions; and the amount of compensation due to the developing world from developed nations most responsible for harms such as CO2 emissions. Thus, although governments have been involved in climate talks led by the United Nations fairly consistently since 1990, GHG emissions have increased roughly 61 percent since 1990 and the amount of CO2 in the atmosphere has doubled. This, as a series of commitments have been broken and backsliding has occurred on emissions targets, technology transfers, and pledges of compensatory aid. In addition, many nations involved in the 2015 UN Paris Climate Change Conference (the twenty-first Conference of the Parties, or COP21) wanted any reduction commitments made to be legally binding. However, the Obama administration successfully opposed such an action, because it would be construed as a treaty that the Republican-controlled US Senate was highly unlikely to ratify.⁸ In a compromise with other nations to offset this concession to the United States, however, the important procedural components of the Paris Agreement are legally binding and can be carried out by executive action. These include provisions for nations to make all their climate actions transparent, to report progress on emissions, and to increase climate actions every five years. Still, there is an opt-out provision for all signees after the agreement goes into effect.

These challenges notwithstanding, not all is doom and gloom. Antonio Gramsci once said that optimism of will is required amid pessimism of the intellect. One sees green shoots in the United States and abroad. For example, our current system has produced important ENR gains since its inception in the 1970s. Moreover, it has done so amid strong economic growth. Since 1970, for instance, the nation’s inflation adjusted gross domestic product has nearly quadrupled, going from $4.7 trillion to $16.3 trillion in 2015.⁹ As Walter Rosenbaum summarizes, air quality has improved significantly in almost every major city since 1970.¹⁰ Modest improvements also have occurred in aggregate measures or national averages of water quality, with major progress made in various locales. What is more, a 46 percent decrease in toxic chemical releases into the environment has occurred since 1986, while dangerous ozone levels have fallen by a third. Additionally, continuing improvements have been seen over the years in such areas as pesticide pollution and the reduction (and near elimination) of ambient air toxics such as lead and formaldehyde. Furthermore, the number of abandoned waste dumps has decreased, the screening and testing of new chemicals have improved, and animal and plant species once on the brink of extinction now enjoy legal protections.

Some progress has also occurred in attitudes and behaviors of key players in the United States and abroad. For example, commensurate with the increasing sense of scientific urgency regarding environmental threats, a March 2016 Gallup poll found that 10 percent more Americans were worried about climate change than a year earlier.¹¹ Importantly, however, the news on the public opinion front in the United States is not all positive and often reflects drastic partisan political divides. When asked to rank issue priorities, climate change does not rank high at all. Moreover, in that same 2016 Gallup poll, 84 percent of Democrats compared with 52 percent of Republican respondents to a 2015 Gallup poll believed that reports of record-high temperatures were accurate. Most strikingly, only 27 percent of Republican respondents compared with 72 percent of Democrats attributed those temperatures to human activity.

Not surprisingly, these same kinds of splits are found among elected representatives, with Democrats decidedly more supportive than Republicans of ENR efforts generally. For example, a 2016 assessment of Republican versus Democratic party voting behavior in the US Congress on key ENR issues illustrates the challenges facing legislative options for aggressive ENR action.¹² The League of Conservation Voters’ National Environmental Scorecard indicates that only an average 3 percent of Republicans supported green initiatives and only 5 percent of all Republicans did so in the US Senate. Two Republican presidential candidates received scores of zero. This made the Republican-led Congress the most anti-environmental in the history of scoring (see Durant, conclusion, for a more detailed discussion of US and world public opinion and partisanship).¹³Thus, unified Republican Party control of the presidency and Congress in 2017 does not bode well for aggressive environmental governance during the Trump presidency.

As several contributors to this second edition make clear, this is the case despite proponents offering many policies that should be attractive to business-minded Republicans. Not only do they incorporate market-based solutions to ENR problems and have major business support, but 59 percent of those surveyed by Pew in 2016 also said that stricter ENR regulations were worth the cost. Only 36 percent said they were bad for the economy. Moreover, and quite positively, a growing subset of the rising generation of new corporate leaders since the 1980s has brought to their positions a moral concern for the effects of their companies’ operations on quality-of-life issues, along with seeing the potential gains of greening for their bottom lines. Indeed, environmental protection has been a key component of the sustainable development, corporate social responsibility, and corporate social and environmental responsibility movements in both epistemic communities and businesses in the late 1980s and 1990s. These leaders (e.g., Sir John Browne) decided that their companies could do well financially while still doing good socially and environmentally.

Thus, the Carbon Disclosure Project released a report in 2015 finding that the number of major companies (e.g., Dow Chemical and Microsoft) incorporating the price of carbon into their internal budgeting processes tripled in 2014 (from 150 to 437), with the greatest improvement coming from Asia.¹⁴ Likewise, some nations have imposed carbon taxes to encourage switches of energy sources to renewables and nuclear power (e.g., Costa Rica, Denmark, Finland, the Netherlands, and the United Kingdom). Costa Rica’s carbon tax, for instance, is credited with substantially reducing deforestation in its rainforests.

However, not all companies are so motivated, and some use such commitments for market advantages only. Some also make such commitments for less noble reasons, including greenmail. Moreover, many nations with carbon taxes have carve-outs for politically powerful industries. And estimates are that the nationally determined contributions offered by the parties to the 2015 Paris Agreement will only be enough to keep global average temperatures from rising by approximately 2.7 to 3.4 degrees Celsius. This, even though the Paris Agreement settled on keeping global temperature increases below 2 degrees Celsius, with further efforts to limit increases to 1.5 degrees Celsius. However, progress is still progress, and the Paris Agreement is a major step forward along what will be a long path.

Also indicative of progress are the efforts of investor-based associations, other so-called voluntary club organizations, and some philanthropic foundations (e.g., the Hewlett, MacArthur, and Packard foundations).¹⁵ Faced with mounting and expensive claims from natural disaster events—some associated with climate change—international financial institutions, insurance companies, banks, pension funds, and venture capitalists have pushed companies to make public their carbon emissions, intensity rates, and strategies for reducing carbon. This push toward governing through non-state markets (e.g., forest certification) and regulation-by-revelation has also been led by associations such as Ceres and the World Business Council for Sustainable Development. These have sometimes been joined by the UN Environment Programme (UNEP) Finance Initiative, nongovernmental organizations (NGOs) such as Greenpeace, and other civic associations (e.g., the Interfaith Center on Corporate Responsibility). In the process, third-party auditing and/or certification of companies’ environmental management systems (e.g., ISO 14001) have become key components of business marketing strategies around the world.¹⁶ Relatedly, Walmart’s Sustainability Index on suppliers is illustrative. The company’s decision to reduce its emissions by twenty million metric tons as of the end of 2015 not only affected its nearly 9,000 retail stores but also its 100,000 suppliers.¹⁷ The latter were required to provide information showing that the intensity of their CO2 emissions had improved. If they could not do so, they were dropped as a supplier.

But perhaps the most significant positive and largely unappreciated long-term step taken has been the Obama administration’s advancement of a potentially transformative ENR agenda by means of the American Recovery and Reinvestment Act of 2009 (popularly known as the Stimulus plan). Although most observers view the Obama administration’s ENR agenda as stalemated in Congress or done by unilateral executive actions (also see Rosenbaum, chapter 3), the foundations of much of President Obama’s ENR agenda were launched by this act. Enacted by Congress to combat the 2007–2009 Great Recession, over one-tenth of the $831 billion stimulus—$90 billion—was an unprecedented amount of green stimulus.¹⁸ The amount was nearly fifteen times the magnitude of the Clinton administration’s $6 billion set of green initiatives in the 1990s.

For starters, President Obama’s green stimulus quadrupled investment in US wind and solar power (solar installations increased nearly 2,000 percent in number) and leveraged the production of nearly a half-million electric vehicles. A conflict-obsessed media focused only on the default of one solar energy loan by Solyndra funded by the administration, while ignoring that nine of the world’s largest solar farms now exist because of the green stimulus. The stimulus bill, as Michael Grunwald summarizes, was the

most transformative energy bill in U.S. history, financing unprecedented government investments in a smarter [energy] grid; cleaner coal; energy efficiency in every unimaginable form; green collar job training; electric vehicles and the infrastructure to support them; advanced biofuels and the refineries to brew them; renewable power from the sun, the wind, and the heat below the earth; and factories to manufacture all that green stuff to the United States. … It authorized a high-speed passenger rail network, the biggest new transportation initiative since the interstate highways, and extended our existing high-speed Internet network to underserved communities, a modern twist on the New Deal’s rural electrification [program].¹⁹

To these can be added such other things as funding for zero-energy border stations, battery factories, solar net metering (determined by states), and electrofuels that could completely replace fossil fuel-based electricity.

Thus, it is too strong and unfair to say that this progress has occurred in spite of, rather than because of, the actions of governments. In addition, what has been called compensatory federalism has arisen in many states in the face of federal inaction on different environmental issues.²⁰ Basically, the states compensate for federal government inaction by taking their own actions—for example, on climate change. At the same time, a vibrant community sustainability movement has spiraled in major cities across the United States and the world. In America, for example, over a thousand cities have joined the US Conference of Mayors’ Climate Protection Agreement and are committed to reducing carbon emissions in their cities below 1990 levels. Moreover, cities across the country have launched an impressive array of initiatives that affect air quality, energy use, transportation, waste disposal and recycling, open-space preservation, establishment of walking and biking trails, watershed protection, and historic preservation. In addition, governments’ ability to tip the decision calculi of polluters toward less polluting behaviors through mandates, legal threats, subsidies, tax credits, and other incentives has been a factor in the progress that has been made. Still, although US (and the world’s) cities are major producers of GHGs and will face much of the environmental harms climate change produces, they have no formal status in UN Framework Convention on Climate Change conferences.

But it is fair to say that progress has been sorely limited by the rather halting, halfway, and patchworked environmental governance regime that has been cobbled together and reinvented several times since 1970. This is a regime that combines aspects of both old and new approaches to environmental governance in various nations, across domestic and international regimes, and using different regulatory approaches. Moreover, it is faced with increasingly complex problems that require multidisciplinary approaches. As such, it is also an environmental governance regime that requires multilevel governance to navigate disparate ideas, interests, and institutions favoring the status quo. Finally, it is also a regulatory regime charged with protecting public health, safety, and natural capital following a three-decades march toward market-based or neoliberal environmentalism—and that shows no signs of abating in a neoliberal economic era and a deregulation-minded Trump administration.

Thus, bringing a results-based sense of common purpose to environmental governance has proven quite challenging in the United States and abroad. Fortunately, an impressive body of research offers important insights into prior challenges, choices, and opportunities in pursuing such a course, as well as glimpses of those heading our way in the future. The authors contributing to this second edition of Environmental Governance Reconsidered (EGR) have played significant roles in this endeavor.

Each of the authors agreed to review prior research in their respective areas of expertise and to take stock of and ponder the future of eleven now-salient concepts. These concepts by no means cover all initiatives animating contemporary debates over how best to craft a results-based sense of common purpose in environmental governance.²¹ Nonetheless, most reformers view them as central to advancing or threatening efficient, effective, equitable, and accountable environmental governance in the twenty-first century.

Before tapping into the expertise of our contributors, the remainder of this introduction sets the general context for their analyses. First, an overview is provided of the sources, nature, and logic of the increasing—though contested—sense of urgency for getting environmental governance right in the twenty-first century, as well as how and why neoliberal environmentalism has arisen. With this as context, greater specificity is given next to the regulatory legacy of three generations of approaches to environmental governance that have evolved worldwide since the 1970s. This is done because these approaches are now layered upon and interact with each other as nations worldwide look to address today’s and tomorrow’s ENR problems.

Next, these approaches are distilled into three pillars of reform that afford challenges, choices, and opportunities to ENR regulators today. The pillars are: (1) reconceptualizing the purposes of ENR governance; (2) reconnecting with citizens and stakeholders to operationalize, implement, and monitor these purposes; and (3) redefining administrative rationality to pursue these purposes effectively. In the process, the eleven concepts are related to the three pillars, as well as to the contributions made by authors in the first edition of EGR.

The Morphology of a Sense of ENR Urgency—and Its Critics

Nations worldwide are currently involved in two historical, profound, and interacting transformations: an economic and social structural transformation and a climate transformation.²² Both hold great global ENR risks if poorly managed but great rewards if correctly handled. Nor can their urgency be overstated. As noted economist and author of the 2006 report, Stern Review on the Economics of Climate Change, Sir Nicholas Stern argues, key decisions will be made over the next twenty years that will mark this century as either one of the best or one of the worst in history for humankind and the natural world that supports it.

Economic and Social Structural Transformation

The economic and social structural transformation we are experiencing is comprised of the impact of the developing world on the economy and global commons. A quarter century ago, these poorer nations contributed only about a third of global economic output; today, they contribute nearly half. A quarter century from now, their contribution will exceed two-thirds of the world economy. Fueling this otherwise good news is spiraling energy demand that has been overwhelmingly reliant on carbon-based fuels (especially coal), in much the same way that developed nations fueled their growth. Over the past twenty-five years, energy demand has increased by 50 percent, and best estimates predict a 40 percent rise over the next twenty-five years.

These industrial development patterns, in turn, have prompted mass migrations to urban areas—and will continue to do so. Some predict that the proportion of urban dwellers will rise from 50 percent to 70 percent, thus further exacerbating public health, sanitation, and service delivery demands that far exceed the capacities of existing infrastructures globally, especially in the developing world. Cities, after all, experience higher mean temperatures because of the urban heat island effect: concrete, asphalt, and buildings are both holders and radiators of heat, they have fewer and less dense carbon sinks than surrounding areas, and their infrastructure is much older and often built in vulnerable areas. As a 2016 report from the Lawrence Berkeley National Laboratory estimated, the world is poised to install 700 million air conditioners by 2030, and 1.6 billion of them by 2050. In terms of electricity use and greenhouse gas emissions, that’s like adding several new countries to the world absent technology improvement.²³

At the root of this transformation is the geometric rate of growth of the world’s population over ever-shortening time periods, as well as rising incomes and otherwise positive developments. It took all of humankind’s history for the Earth’s population to reach a billion persons in 1800. It then took only 130 years for the world’s population to top two billion persons (1930) and only 45 more years to reach four billion persons (1974). Indeed, the twentieth and twenty-first centuries saw mortality declines resulting from such advances as antibiotics (penicillin), improved medical knowledge, and improved medical services. These otherwise beneficial trends catapulted the world’s population past the six billion mark by 2000.²⁴ In late 2016, the world’s population reached over 7.4 billion persons. Current UN projections are that it will reach 10 billion persons by 2056.

However, it is not mere numbers of people that pose challenges, choices, and opportunities for societies worldwide. The age distribution of this growth matters even more. Although about two billion persons are part of the consuming middle class today, current projections are that 4.8 billion will join that class by 2030.²⁵ This development places enormous stress on the planet’s resources because of enhanced demands for goods, services, and amenities brought by a middle-class status.

Consider food security alone. Food yields must soar to meet these demographic pressures at the same time that arable land, agricultural labor, and water supplies are diminishing. Jonathan Foley puts the dilemma in readily understandable terms:

The world’s food system faces three incredible, interwoven challenges, then. It must guarantee that all seven billion people alive today are adequately fed; it must double food production in the next 40 years; and it must achieve both goals while becoming truly environmentally sustainable. … Demand will also rise because many more people will have higher incomes, which means they will eat more, especially meat. Increasing use of cropland for biofuels will make meeting the doubling goal more difficult still. So even if we solve today’s problems of poverty and access … we will also have to produce twice as much to guarantee adequate supply worldwide. … By clearing tropical forests, farming marginal lands and intensifying industrial farming in sensitive landscapes and watersheds, humankind has made agriculture the planet’s dominant environmental threat.²⁶

Various emerging or disruptive technologies for dealing with problems such as these have been introduced historically (e.g., genetically modified foods, climate geoengineering, and nanotechnologies). However, they typically face public resistance, within and across nations, because of their alleged risks. Thus, managing this transformation adroitly also means better urban planning, alterations in consumption lifestyles, and developing alternative sources of energy. With this has come a commensurate increase in the complexity of building a results-based sense of common purpose, domestically or internationally.

Climate Transformation

All of which leads to the second transformation that Stern and others cite as requiring adroit management to navigate: climate transformation. The Intergovernmental Panel on Climate Change convened by the World Health Organization and the