Anthem EnviroExperts

Review by Sean Nolon, Vermont Law School

Joel Mintz’s work offers fascinating insights into changing approaches to environmental law enforcement in recent decades.

Enforcement at the EPA: High Stakes and Hard Choices, by Joel A Mintz, University of Texas Press, 323pp

This book presents a fascinating historical account of how EPA’s approach to enforcing environmental laws has changed over the last forty years. Fortunately, this book has many moments where the author brings a potentially dry topic alive through the use of quotes and personal accounts from agency insiders.  Professor Mintz has written an enjoyable and informative volume that follows in the tradition of great qualitative research such as Anne Fadiman’s The Spirit Catches You and You Fall Down.

This work is the product of many years of research and the author’s passion to make sense out of the tangled path that EPA has followed since being created by President Nixon in the 1970s. Professor Mintz reviewed EPA enforcement policy documents from 1970–2009 and interviewed over 190 present and former government officials. This behind-the-scenes presentation of how presidents from Carter to Bush II affect enforcement at the EPA is fascinating. Some of the highlights addressed are: EPA’s style of enforcement over the years; the effect of congressional oversight, including decentralized committees and budget authority on EPA’s ability to enforce; the relationship of political appointees to agency staff under different administrations; the decline of agency effectiveness in recent years; and an exploration of the threat and reality of agency “capture.”

By giving a thorough historical account of enforcement at EPA, readers will see more detail of the shadow under which many environmental negotiations take place. Readers with an interest in environmental regulation and those who enjoy the evolution of institutions and how they respond to changes in society will enjoy this volume.

Reviewed by W. Todd Jarvis, Oregon State University

Shafiqul Islam and Lawrence E. Susskind provide an interesting new framework that is both innovative and complementary to existing water negotiations frameworks.

Water Diplomacy: A Negotiated Approach to Managing Complex Water Networks, by Shafiqul Islam and Lawrence E. Susskind, RFF Press, 334pp

The days of groundwater problems being solved by hydrologists watching water move through well screens or across computer screens is quickly being replaced by the political melodramas typically found on the movie screen – negotiating over water use and reuse. This is where the new book by Shafiqul Islam and Lawrence Susskind is an important addition to the library of postmodern hydrologists. The objective of the book is to provide “a 21st century approach to water management that acknowledges the complexity and uncertainty of natural and societal systems, accepts the increasing interconnectivity and consequences of important decisions, and rejects the unquestioned authority of hierarchical governance structures.”

Water Diplomacy reads like three books under one cover. The first book develops the water diplomacy framework with an introduction to complexity theory, scale and networks through the clever use of a fable about a fictitious river basin, Indopotamia. The second book sets the stage for negotiations by examining a non-zero sum approach to water negotiations. Special features of the first two ‘books’ include many excerpts from selected journal articles related to each chapter topic, followed by short commentary by the authors.

The reader revisits Indopotamia in the third book, where a well-documented role play simulation is offered as a capacity-building exercise. I participated in this role play simulation during the 2012 Water Diplomacy Workshop. The book, the annual workshop and the role play are wonderful additions to the many other trainings and frameworks on negotiations over water resources.

Reviewed by Marina Alberti, University of Washington

Natural Capital uses a series of assessment models to translate the science of ecosystem services into practice.

Natural Capital: Theory and Practice of Mapping Ecosystem Services, edited by Peter Kareiva, Heather Tallis, Taylor H. Ricketts, Gretchen C. Daily, and Stephen Polasky Oxford University Press, 392pp.

The concept of ecosystem services has provided a useful framework to explicitly link nature conservation to human wellbeing. Although the inextricable links between natural processes and human society trace all the way back to Greek philosophers such as Plato, the explicit recognition of nature’s benefit to humanity is relatively recent. Daily’s Nature’s Services (1997) is perhaps the first attempt to systematically assess ecosystem values and advance the notion that valuing ecosystem services may provide an effective approach for conservation. During the last decades, we have learned a great deal about the role of ecosystem functioning to provide critical services such as clean water, carbon sequestration, and crop pollination. The Millennium Ecosystem Assessment (2005) has provided a powerful framework to assess global ecosystem services and a first synthesis of potential threats. However, we know much less about how to integrate the emerging science into everyday decisions.

Natural Capital takes on this challenge with an essential first step. A diverse team of scientists has put together a compelling synthesis of explicit links between ecosystem services and human benefits and has developed a series of assessment models to translate the science of ecosystem services into practice.

As the authors indicate, it is only a beginning. Next steps will imply refining methods and accounting for complex feedback loops, dynamic effects and uncertainty. Yet to fulfil the objective of translating the knowledge to practice, the authors recognize the need for the natural and social science to address some difficult questions about quantification, predictability and cultural values. I would highlight that among them, the greatest challenge is understanding the complexity of decision processes, the diversity of decision makers and dynamic of institutional change. Primarily grounded in ecology and economics, the science of ecosystem services will need to expand the disciplinary boundaries. Natural Capital poses important challenges and creates new opportunities for building bridges with a diversity of social sciences and humanities.

Reviewed by Matthias van Maasakkers, MIT

Douglas Kysar exposes a critical flaw in the dominant environmental law and policy paradigm of risk assessment and cost-benefit analysis.

Regulating from Nowhere: Environmental Law and the Search for Objectivity, by Douglas Kysar, Yale University Press, 336pp

Cost-benefit analysis has become virtually inescapable in environmental decision-making. Yet, as Douglas Kysar points out in this nuanced yet profound critique of that method and the narrow assumptions of welfare maximization it is based upon, there are plausible alternative frameworks to inform decision-making in the environmental realm. This book moves beyond mounting ethical, theoretical and practical arguments to show the shortcomings of cost-benefit analysis, although it probably is the most detailed and sustained development of those arguments since Mark Sagoff’s The Economy of the Earth.

The book is most effective when describing the ways in which precaution is not only a viable alternative, it is also already embedded in many environmental laws and activities in the United States and elsewhere. In the appendix, a draft Environmental Possibilities Act is included, showing Kysar’s commitment and ability to translate precautionary philosophies into specific, if hypothetical, policies. The Yale Law School professor moves between practical examples and French philosophers like Derrida. He produces a sustained argument that cost-benefit analysis restricts informed decision-making as opposed to enabling it because of increasingly untenable restrictions on standing and the assumption of impermeability of national boundaries. Important questions regarding legal standing that are emerging in relation to new biological and genetic manipulation technologies are described in detail.

This book is important not so much because of its current and compelling critique of cost-benefit analysis, but mainly because of its impassioned and effective reframing of the precautionary principle as an active and effective idea in environmental decision-making. Kysar reclaims the centrality of morality in environmental law, without ignoring the need for practical engagement.

Reviewed by Shafiqul Islam, Tufts University

This book presents a new theory of collaborative rationality to help make sense of the new practices.

Planning With Complexity: An Introduction to Collaborative Rationality for Public Decision-making, by Judith Innes and David Booher, Routledge, 256pp

In Planning with Complexity, this scholar-practitioner team looks at planning and public policy through the lens of complexity science. They explicitly recognize that many social policy, planning and management problems are “wicked” as defined by Rittel and Webber (1973). They argue that there is no consensus even on the definition of the problem, much less on goals to achieve. The uncertainty inherent in such complex systems means that even powerful actors and knowledgeable experts cannot predict how uncertainty in information, action and perception will manifest itself on a particular policy prescription. A central aspect of their argument is that for wicked problems, there is no solution that can be shown to be predictable and optimal.

They propose a new form of planning and policy called, collaborative rationality. This is a welcome departure from traditional instrumental rationality for decision-making. Their collaborative decision-making theory – Diversity, Interdependence, Authentic Dialogue (DIAD) – is based on three conditions embedded within it. It is theoretically elegant and grounded in the work of Habermas (1981) and the notion of communicative rationality. When all of the ordinary constraints on the free exchange of ideas (such as differences in status, power, etc) are lifted, Habermas believes that good faith discourse between individuals will allow them to reach a consensus about the truth. Authors explicitly recognize that collaborative rationality requires an equalization of power among all stakeholders (P. 111).

It is not clear, however, how pragmatic such an equalization of power is for planning and management of wicked problems. This is partly because rationality based on scientific method and positivist approach is a highly contested notion, while collaborative decision-making relies heavily on interpretive, pragmatic and experiential way of knowing. How to make these apparently dichotomous ideas into collaborative decision-making process in a politically real world is a practical challenge. Authors are pragmatic in acknowledging that “dialogues cannot directly change the deep structure of power (P. 110)” but actions can have second or third order effects. Their observation that planning has to proceed independent of trust  is somewhat puzzling. Recent literature on planning and management of common pool resources (Ostrom 2011, Susskind and Islam 2012) suggest creating trust and values to be fundamental in this regard.

To summarize, Innes and Booher have provided a fresh look and theoretical foundation on how to think about planning and managing wicked problems from complexity science perspectives. Hopefully, their future contribution will provide more insight on how to practically manage wicked problems within the context of collaborative rationality.