Advertise on podcast: Free Range with Mike Livermore

Free Range is launching a Patreon page to continue the podcast. If would like to support the podcast, visit patreon.com/user?u=106202307. In this solo episode, host Mike Livermore discusses the career of Dick Stewart, a mentor who was a longtime faculty member at NYU Law who died this past year. Livermore describes two important political developments in the twenty years since he met Stewart: the breakdown a functioning bipartisan coalition on environmental issues, and the decline of the "liberal international" order based on strong transnational institutions, free trade, and expanding human rights. These developments have helped contribute to a "reformation" of U.S. environmental law (a reference to Stewart's famous law review article "The Reformation of American Administrative Law). The summer of 2022 marked the true sea change, with the passage of the Inflation Reduction Act and the Supreme Court's West Virginia v. EPA decision. Livermore discusses how this reformation has reshaped the emphasis of policy debates over U.S. environmental law. The first is a shift in emphasis from efficiency to distribution. The second is a shift from instrument choice (command-and-control versus market mechanisms) to industrial policy. The third is a shift from questions about administrative governance to a more basic debate of "pro-" versus "anti-" administration. The fourth is a shift from debates about how best to structure cooperative federalism to an ongoing struggle with antagonistic federalism. Livermore offers some thoughts on the future grounds for both intra- and inter-party disagreement on U.S. environmental issues. Within the Democratic party, debates between environmentalists, energy developers, and labor unions were suppressed in the lead up to the passage of the IRA, but they have resurfaced in the context of siting reform and individual energy projects. These debates are likely to play an important role within the party in coming years. Within the Republican party, there is an increasing need to expand the party base, especially among younger voters, and the question is whether it is possible to square a more pro-environment approach with the party's new right-wing-populism platform; perhaps via policies such as carbon border adjustments or a cap-and-dividend policy that is pitched as an anti-immigration measure. At the global level, increased nationalism and renewed tension are likely to increase energy competition. While this competition may increase incentives to invest in cleaner sources, an "energy independence" mindset also increases the cost of new technologies (through anti-trade policies) and encourages development of domestic fossil fuel sources. Overall, political developments in the past twenty years have dimmed hopes for substantial policies that substantially cut greenhouse gas emissions. But one lesson from the reflections in the podcast is that politics is highly unpredictable, and trends that seem certain now may end up being less stable than they appear.

In this episode of the Free Range Podcast, host Michael Livermore is joined by guest Cale Jaffe, director of the Environmental Law and Community Engagement Clinic at the University of Virginia School of Law. The conversation touches on several key issues in environmental scholarship and pedagogy. A theme of the conversation is the relationship between lawyers and communities in environmental disputes. Jaffe argues lawyers must approach communities with humility and truly listen to their goals and concerns. Environmental fights should be led by impacted residents rather than lawyers parachuting in with prescribed legal strategies. Jaffe shares an example opposing a Virginia coal plant where he took a top-down approach that alienated local community members. Jaffe’s experience connects to debates within environmental justice scholarship around procedure versus substance. Jaffe emphasizes that inclusive processes must have power - community input should shape project outcomes. Mere listening without willingness to change plans is insufficient. Centering community voice and leadership is critical for just environmental policymaking. Livermore and Jaffe also discuss the role of disagreement within the environmental community. Oten, the major groups adopt unified stances to maximize resources and influence. However, these unified stances often mask internal disagreement on issues like nuclear power. There are no easy answers balancing coordination and open dissent. In terms of environmental clinical pedagogy, Jaffe aims to develop wisdom in students rather than just technical skills. He stresses genuinely connecting with students as people first. He does so through blending classroom and practical work which helps model community lawyering goals like humility and listening. The Environmental Law and Community Engagement Clinic allows engagement on varied issues of intellectual and social importance rather than just organizational priorities.

On this episode of the Free Range Podcast, host Mike Livermore has a conversation with literary scholar Nicholas Allen about his recent book "Ireland, Literature and the Coast: Seatangled". The discussion begins with an examination of the book's evocative title. Allen explains that the phrase “seatangled” comes from a scene in James Joyce's “A Portrait of the Artist as a Young Man,” where the character Stephen Dedalus looks out at the seaweed shreds in the ocean as he contemplates his future. For Allen, this image captures the ideas of motion, flight, and piecing things together that are central to his analysis of Irish literature through the lens of the sea and coastline. The core of the book consists of close readings of authors, artists and specific works related to Irish coastal life and culture. Allen elaborates that he chose works that have long been stuck in his imagination, ranging from an early 20th century novel about a shipping clerk to the coastal maps created by artist Tim Robinson. His aim was not to be comprehensive but rather to highlight neglected or forgotten histories and show their continued cultural presence. In discussing his critical approach, Allen emphasizes that he is less interested in making definitive arguments and more interested in creating rhythms and connections that allow readers to see texts differently. He wants to find a descriptive language that conveys sensation and experience without colonizing or containing its subject. This pursuit of openness, empathy and freedom guides his writing. The conversation explores how the coast features as both literal place and literary metaphor in the book. Other topics include the creative aspects of literary criticism, the meaning of “critical thinking,” placing Irish literature in a global context, the complications of national literature as a category, and Allen’s surprising archival discoveries while researching the book. Allen illuminates a fluid, interconnected approach to Irish literature that breaks down boundaries and expands perspectives.

On this episode of Free Range, host Mike Livermore is joined by Lisa Robinson, a senior research scientist and the deputy director at the Center for Health at the Harvard School of Public Health. Lisa is a leading expert in the use of cost-benefit analysis to evaluate public policy. The conversation begins with a discussion of the use of cost-benefit analysis and its importance in policy making. Robinson describes cost-benefit analysis as a systematic framework to examine policy impacts, which can help inform the choices made by political decision makers. Often, there are substantial uncertainties in analysis, which means that they do not deliver highly precise estimates. That said, the analytic process often generates useful information that can improve a policy. (0:11-5:22) The two then discuss controversies surrounding cost-benefit analysis. Controversies include how to value morality risk reduction through tools like the “value of statistical life.” Robinson discusses her view that the term “value of statistical life” is misleading, because actually most rules affect very small risks that are experienced by large populations. Robinson also emphasizes the non-paternalistic nature of cost-benefit analysis, because it is based on how people actually value effects in the world. (5:22-25:56) Robinson then describes how cost-benefit analysis has become complex over time which makes it difficult for the public to understand, and therefore analysts need to improve communication with non-experts. There are also empirical challenges surrounding this topic, with rising debates around accounting for distributional effects of this analysis. Often the effects of cost-benefit analysis are unevenly spread, causing issues for disadvantaged groups and enforcing the relevancy of value judgments. Overall, cost-benefit analysis informs decisions but does not dictate them. It provides useful information, but there are limitations such as legal constraints. More work is needed to extend and refine the framework across policy areas. Despite its difficulties, for Robinson, overall cost-benefit analysis contributes to good policy decisions that improve social welfare. (25:56-59:53)

On this episode of Free Range, host Mike Livermore is joined by Leif Wenar, professor of philosophy at Stanford University and author of Blood Oil: Tyrants, Violence, and the Rules that Run the World. Wenar first delves into his argument that the “resource curse” arises when natural resource wealth correlates with authoritarianism, conflict, and corruption. He explains this results from international rules allowing whoever controls resources to sell them legally, thereby empowering dictators and militias. Consumers are thus complicit in funding coercion through everyday purchases. To counter this, Wenar contends we should reform the rules to only allow purchasing natural resources from governments minimally accountable to their people. He provides specific civil liberties criteria to make this accountability judgment, noting countries like Brazil have already pursued such legislation. Beyond pragmatism, Wenar argues this principled reform based on popular sovereignty would prevent our complicity in suffering and reflect our professed ideals (0:37-28:13). This relates to Wenar's philosophical work on “unity theory” - the view that intrinsic goodness lies in unity of one's will with the world, unity amongst people, and unity within oneself. Acts like cruelty and domination exemplify disunity and are intrinsically bad, while kindness and altruism reflect unity and are intrinsically good. Love represents the pinnacle of unity's value. Applied to resources, the status quo divides countries against themselves and pits the West against other nations in lose-lose conflicts. Though divisions abound, Wenar finds hope that humanity's growing cooperation and stability suggest we are gradually unifying more over time. Ultimately, we should change unjust rules which divide peoples from their resources in order to build a more unified world. This connects to Wenar's foundational value theory. He argues prevailing accounts based on pleasure or desire satisfaction fail to capture much of what we view as intrinsically good and bad. Unity better explains the full range of our value judgments, from the innate badness of spite and cruelty, to the essential goodness of love and altruism. Reform to unite people and resources is thus both pragmatic and philosophically grounded in a robust theory of value (28:14- 1:07:00).

On this episode Free Range, host Mike Livermore is joined by Lisa Heinzerling, an environmental law professor at Georgetown University and former Associate Administrator of the Environmental Protection Agency's Office of Policy during the Obama administration. The focus of the episode is centered around major Supreme Court decisions on environmental law over the past two decades. The two begin by discussing Massachusetts v. EPA, a 2007 case where the Court ruled 5-4 that the EPA has authority under the Clean Air Act to regulate greenhouse gas emissions. Heinzerling explains that during the Bush administration, the EPA denied a petition to regulate greenhouse gases, arguing it lacked authority and did not want to regulate. Environmental groups challenged this decision, leading to the Supreme Court ruling the EPA does have authority to regulate greenhouse gases under the Clean Air Act’s broad definition of “air pollutant” (0:00-7:54). The pair then discuss how Massachusetts v. EPA established clear statutory authority for the EPA to regulate greenhouse gasses and shaped the Obama administration’s regulatory actions. Fifteen years later, and after a complicated procedural history, the Supreme Court reviewed the Obama-era Clean Power Plan in West Virginia v. EPA (2022). In that case, in striking contrast to Massachusetts v. EPA, the Supreme Court limited the EPA’s authority to regulate greenhouse gas emissions from power plants under the Clean Air Act. In West Virginia, the Court also embraced the “major questions doctrine,” which presumes against broad agency regulatory authority on major policy issues (7:55-27:40). On the Clean Water Act, Heinzerling and Livermore trace a similar pattern. In Rapanos v. United States (2006), the Court upheld federal jurisdiction over wetlands with a “significant nexus” to navigable waters, but the recent Sackett v. EPA (2022) severely restricted federal jurisdiction under the Clean Water Act (27:41- 40:01). Heinzerling expresses concern that the current Supreme Court's skepticism of agency regulation will constrain executive and agency actions to address environmental problems like climate change. She finds the road traveled in just less than two decades from Massachusetts v. EPA to be “sobering.” Livermore concludes by noting that although some environmentalists believe that the courts could be a useful venue for promoting a strong response to climate change, with the current Court, that seems highly unlikely (40:02-56:45).

On this episode of Free Range, host Mike Livermore is joined by Jess Locke, an associate professor of philosophy at Loyola University, Maryland. She studies Buddhism, Western psychology, and cross-cultural philosophy. Locke’s interest in Buddhism is both personal and scholarly. She has a longstanding contemplative practice, and when she began her PhD program in philosophy at Emory, her goal was to engage with Buddhism from a Western philosophical perspective. Locke discusses how her work as a philosopher working with Buddhist ideas differs from how scholars in religious studies departments approach some of the same material. For Locke, religious studies scholars often take a historiographical and anthropological perspective on religious traditions, whereas she is interested in using philosophy to interrogate the ideas in a more general way. (0:00-10:59). Locke then discusses the difference between cultural appropriation and cross-cultural engagement when approaching Buddhist traditions. Over the past several decades, a mutual process of exchange across Buddhist and non-Buddhist traditions -- especially in the West -- has opened up. This exchange has created a new frontier in the long history of Buddhism, which has spent centuries traveling, adapting to and blending in with different histories and cultural contexts. One important recent thread in Buddhism focuses on social engagement and how Buddhist principles like interdependence and impermanence to contemporary social issues like environmentalism. Some see this as distorting traditional Buddhism, while others argue Buddhism must adapt to new circumstances. (10:59-38:50). The conversation wraps up with the contrast between Western and Eastern ethics. Locke explains how in Western culture, there is a larger focus on obligations and rights. For Locke, Buddhism is more concerned about ethical reflection and transformation than articulating a set of universal rules of conduct. In the environmental context, that might mean focusing on the relationship humans have with the environment rather than specifying the correct way to approach any given environmental problem. That said, Buddhism does not automatically lead to ethical behavior, as seen in some historical and contemporary examples like Japanese Zen nationalism and the persecution of Rohingya in Myanmar. There can be gaps between doctrine and how ideas manifest in society. Overall, Buddhism offers resources for rethinking the relationship between humans and nature, but does not represent a magic solution to ethical issues (38:50-1:02:06).

On this episode of Free Range, host Mike Livermore is joined by Lee Fennell, a law professor at the University of Chicago and author of Slices and Lumps: Division and Aggregation in Law and Life,. The conversation begins with a discussion of the role of aggregation in law. Fennell explains that in many other contexts, resources only provide value when they are combined into usable chunks. Property law can be understood as balancing two competing concerns – facilitating the aggregation of recourses to create value (on the one hand), and avoid too much aggregation, which can create opportunities for free-riding (0:36-18:13). Fennell explains how property law helps individuals and groups create stream of benefits. Property law is distinctive, in part, because it involves the concept of ownership. But property's traditional model of ownership doesn't always fit modern needs to solve new collective action problems. Ideally, property owners have some power over their property – and confidence that their rights will remain stable, while also not being able to impede how things are put together for the greater good. Stability is important for property owners, but the world is dynamic. Culturally, there's a conflict between the idea that property ownership involves absolute control and the reality that it's constrained by regulations and external factors. A major challenge for the future is to redefined concept of property in a way that's more adaptable but still aligns with people's expectations of stability. One solution could involve allowing ownership interests over certain benefits (like housing) but not fixed to a specific physical footprint (like a particular house), providing flexibility while maintaining stability (18:14- 37:35). Fennell is interested in how private and entrepreneurial efforts can work alongside existing property concepts to find ways to address challenges. This includes utilizing law to facilitate voluntary transactions and dynamic property management. However, Livermore points out that government coercion is inherent to property law. Fennell describes the challenge as transitioning from traditional property expectations to more flexible models that encourage voluntary interactions and entrepreneurial solutions, adapting property arrangements to address today's urban and environmental challenges. In reimagining property systems, two major changes could be considered: first, making property ownership less permanent and allowing for adjustments; second, moving away from fixed geographic locations and making property rights more dynamic. This could involve creating options for property ownership that can be called back or reconfigured under certain conditions and enabling more flexibility and collaboration among owners for potential redevelopment. Another approach might involve concentrating property under a single owner who can then rearrange holdings, but this approach comes with its own challenges of concentration and scale. These ideas aim to introduce more adaptability and responsiveness to property systems while still maintaining individual ownership. Lastly, addressing inequality through property involves considering how services are created and distributed, as political decisions and public goods shape property's value and impact; illuminating these dynamics can help reveal alternative ways to configure property for a more equitable outcome (37:36- 1:02:27).

On this episode of Free Range Podcast, host Mike Livermore is joined by Sabeel Rahman, a professor at Cornell Law School with substantial public policy experience, including as president of the think tank Demos and as senior counselor and then later as the acting Administrator in the Office of Information and Regulatory Affairs in the Biden administration. Rahman is also the author of the book “Democracy Against Domination” amongst other works. Livermore and Rahman begin by placing his book within recent historical context, from the 2008 financial crisis that renewed attention to economic inequality, to the 2016 presidential campaign of Donald Trump, which substantially emphasized attacks on the regulatory estate. For Rahman, he argues that the technocratic, managerial approach to governance that was promoted by many liberals in the aftermath of the 2008 financial crisis lack the moral resources to truly respond to the political moment, creating an opportunity for Donald Trump to propose an alternative. Rahman also discusses his view that the challenge of the modern economy is not income inequality, but rather that problem of power and domination. (0:48-10:51) In his book, Rahman is also interested in emphasizing historical ideas that have lost currency, including by thinkers such as Louis Brandeis and John Dewey, that focused on how to construct a democratic system in light of economic power. These ideas have been picked up by modern scholars and policy makers such as Lina Khan and Jed Purdy. The book also discusses how norms of democratic governance interact with the administrative state. (10:51-23:40) The conversation turns to questions related to expertise, the role of interest group bargaining in the administrative process, and the potential for broader participation. (23:40-36.49) They discuss participatory mechanisms such as citizen assemblies, lottocracy, and existing cooperative federalist approaches. (36.49-40:10) The final segment of the podcast focuses on Rahman’s time at Demos and in the Biden administration. (40:10-1:07) Rahman discusses the role of the civil service in a robust democracy, the need for civil society, and some steps that the Biden administration has taken to facilitate community participation in federal decision making. The conversation ends with a discussion of the complex interplay between deliberation, participation, and the necessary exercise of political power in the real world.

On this episode of Free Range, host Mike Livermore is joined by Holly Doremus, a professor of environmental law at Berkeley and the co-director for the Berkeley Institute for Parks, People, and Diversity. Doremus has a interdisciplinary background with a PhD in Plant Physiology from Cornell in addition to her JD. For Doremus, one of the benefits of an interdisciplinary educational experience is that it has helped her to better understand what questions different disciplines are able to address and what questions they may not have thought to ask. In our approach to answering conservation questions, we need to reevaluate what our goals are in order to decide how to achieve them. At the start of the Endangered Species Act in 1973, crucial questions, including fundamental questions concerning the nature of a species, and our risk tolerance and willingness to commit social resources to conservation, were either not understood or were seen as better addressed later. A further contemporary challenge is that the ESA was not framed to protect the proportion of species that are at risk today. One consequence of the Anthropocene is an increasingly number of species under protection, which means greater limits on individual and commercial activity. Doremus believes that congressional intervention will become more common as the number of ESA controversies increases (6:44-23:34). Due to the tendency of politics to act as a set of competing performances, Congress is not the place we should start the conversation about reconsidering our conservation approach. Rather it should begin in academia, where crucial interdisciplinary discussions can happen. Academics can generate an updated consensus of the public’s opinion on biological conservation (23:35-46:27). Even if conservation goals were agreed upon, there would still be many questions about how to achieve those goals. To what extent should humanity take the role of the world’s gardeners? Who gets to decide what the garden looks like? How much control should we have over species in order to achieve our conservation goals? What are the obligations of the public to pay for the conservation that it wants? These are all complex political and scientific questions that will have to be answered in order to make legitimate progress in conserving the biological world (46:28-1:02:10).

On this episode of Free Range, host Mike Livermore is joined by Harvard Law professor Richard Lazarus. Lazarus is the author of the book “The Making of Environmental Law”, which is now out in its second edition. On of the key takeaways from Lazarus’ book is that environmental law is especially difficult because environmental science and economics collide with the lawmaking system. Ecosystems naturally spread cause and effect out over time and space. Therefore, activities that occur in one place at one time have consequences that arise at another place and time. Regulation and lawmaking systems struggle with this because these laws regulate people at one place in time for the benefit of another group at another time, leading to substantial distributional consequences. (0:36-16:03) The distributional effects of environmental law have also contributed to the current polarized political situation regarding environmental action. In a state like West Virginia, there were political gains to be made by the Republican party by opposing climate regulation, because of the local economic costs of reducing the nation’s reliance on coal. As the parties vie for different constituencies, polarization naturally arises when groups opposed to or supportive of environmental protection sort into the two parties. This dynamic has played out over many issues in the past decades, but environmental policy may be particularly prone. (17:50-31:05) The two then discuss environmental justice and its ties to the polarization of environmental law. Lazarus reflects on how his view of the topic was changed when a student in his hazardous waste class inquired about his theory that waste sites are more prevalent in minority neighborhoods. That interaction ultimately led Lazarus to rethink how he approached environmental law to focus more on race, class, and fairness issues. (33:30-44:21) The conversation wraps discussing polarization and the role of the courts. Lazarus offers his view that attention to fairness issues and the commercial opportunities presented by environmental transitions can help build a bipartisan coalition in favor of environmental protection. The two then discuss the two most recent major environmental cases in the Supreme Court: West Virginia v EPA and the Sackett case. For Lazarus, the West Virginia decision to uphold the repeal of the Clean Power Plan was irresponsible but not out of bounds; it prevented an ambitious future plan for environmental protection, which had a solid, but not unassailable, statutory basis. He sees Sackett because it relied on shoddy interpretation of the Clean Water Act to undermine a longstanding and successful environmental program. Despite this, Lazarus has a somewhat optimistic view of the Court. Even if it will continue to be an obstacle to executive action to protection the environment, if it is possible to pass new environmental legislation to address issues like climate change, he believes that the Court will not get in the way. (47:28-1:06:23)

On this episode of Free Range, host Mike Livermore is joined by UVA Law professors Quinn Curtis and Mitu Gulati, as well as UNC-Chapel Hill Law professor Mark Weidemaier, all experts in the regulation of financial markets, to discuss new paper, Green Bonds and Empty Promises. A wide range of institutions borrow within the bond market, including municipalities, corporations, and sovereign nations. The essence of a bond is a set of promises, which include repayment terms and limits on opportunistic behavior by debtors. One new feature of the bond market is the rise of ESG (Environmental, Social, and Governance) investing. ESG is widespread within the mutual fund industry, but has found a place in the bond market as well. But there is a difference between investing in the environment through stocks and through bonds. Stocks allow the investor to earn more as companies gain wealth by adapting to climate change, but bonds are paid back at a fixed rate of return, so the risk and return equation is different. Green bonds are a type of bond that is associated with environmental projects, but the actual language in bonds dealing with sustainability or environmental performance is often vague. This was one of the major research findings in Green Bons and Empty Promises – purportedly environmentally friendly bonds don’t actually limit how the borrower can spend the borrowed money (0:50-27:58). To understand the market for green bonds, Gulati, Curtis, and Weidemaier began by defining the category “green.” For this, they relied on third party databases that are used throughout the industry when investors are building ESG portfolios. Issuers likely determined their own categorization, essentially deciding whether their own bonds would be listed as “green.” The green label matters because these bonds might have a lower interest rate, referred to as a green premium, although research indicates that any green premium that does exist is very small. But, green bonds do appear to enjoy a some benefit in terms of liquidity because many investor want to show their clients environmental responsibility. After collecting a sample of green bonds, the team then investigated the actual promises found in them. Interestingly, their research found that green bonds generally do not possess legally enforceable commitments to use proceeds for environmental projects. Interview research found that many know the “green” label is PR and don’t expect the status quo to improve. (27:59-57:56). The conversation wraps up with the methods in which the situation can be addressed, and all four provide their opinions. Weidemaier explains that legal enforceability would remove the market’s liquidity, transforming it to an affinity bond market that is no longer fungible. Another option is to simply kill the market, since green branding can still happen but then no one is misled on such a scale. Curtis believes that there is some room for improvement, as certifiers can begin considering legal enforceability and the market would inevitably become smaller, but more credible. This theory depends on the sincerity of the investors’ demand. Gulati considers the green bond market to have the potential to evolve into something better, since it is currently booming and the way it operates is unique. Livermore describes significant environmental improvements as being made mostly through policy, so the value in private markets is mainly that they raise awareness for climate change and may aid in a cultural shift to support pro-environmental policy (57:57-1:09:20).