Tag Archives: climate change

Time To Rethink Federalism

I used to begin my classes in Law and Public Policy with what I call the “constitutional architecture,” the structures of U.S. government. As I would tell students, the Founders had divided authority both vertically and horizontally–through Separation of Powers and Federalism.

Most graduate students were familiar with those terms. Undergraduates generally knew that we had three branches of government, although the term “Separation of Powers” was less familiar to them, but very few could define federalism–the division of jurisdiction between the federal government and the states. Both mechanisms were intended to provide “checks and balances”–to limit the power of the central government.

The world we inhabit is very different from the world that confronted the nation’s founders. We still need federalism–but it is past time to review and adjust the current divisions of authority among local, state and federal levels of government.

A number of those divisions are still useful and should be retained. State and federal governments have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, to choose a couple of examples, but other current assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to misconduct–an invitation that  state-level lawmakers eagerly accept.

In a number of areas, there are awkward pretenses of state “sovereignty” where contemporary realities mean none really exists. (Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the similar “strings” attached to federal funding.) 

At the other end of the spectrum, there are an increasing number of issues, including but certainly not limited to the threats posed by climate change and the pandemic, that must be addressed globally.

Then there are the increasing tensions created by legislators in red states who want to be free of the constraints imposed by the Bill of Rights.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until Donald Trump managed to pack the Supreme Court with rightwing ideologues–they have been forbidden to retract them.

There are multiple reasons to revisit the division of authority between the nation’s state and federal governments. I realize that any effort to do so would be met with alarm–much as we’ve seen with calls to eliminate the filibuster that currently prevents the Senate from actually governing. We humans are creatures of habit: we become accustomed to the world we have grown up with, and assume that the structures of whatever society we inhabit are just “the way it is.” (A great example: the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman.” That’s demonstrably false. Even if you ignore biblical history, more than half of the world still recognizes plural marriage. But it was true within the confines of their limited experience.)

A recent guest essay in The New York Times pointed to the undeniably negative effect of our current federalism on public health.

Tennessee and North Carolina are both digging out from catastrophic flooding, while parts of Louisiana were flattened by Hurricane Ida, and most of New Orleans remains without electricity. Ida’s remnants also brought even more rain to areas of the South and beyond that were already dangerously waterlogged.

In the Utter Failure to Understand What “Pro-Life” Really Means tournament, normally a very close battle in the red states, Texas is currently uncontested: Its leaders just made it easier to carry a gun and harder to end an unwanted pregnancy in the same week.

Finally, in the Colossally Botched Medical Emergency competition, it’s neck and neck across the region as Republican governors double down on efforts to block mask and vaccine mandates, along with every other pandemic-mitigation attempt made by people who are not allergic to science.

The author points out that every single one of these disasters is a public health emergency that red state governors have worsened “in every way imaginable.” (A recent NBC poll confirmed that politics has played havoc with public health. It found 91 percent of Biden voters vaccinated opposed to 50 percent of Trump voters.)

 Citizens’ health and safety– and the extent of their civil rights–  should not depend upon their state of residence. 

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A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including  famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of  America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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When Policy Works…

When I was much younger and far less aware of the complex interactions of governance and political culture, I was very critical of America’s use of the tax system to influence behavior. If the government needs X dollars to pay for the services we want that government to provide, why not simply set a rate or rates sufficient to collect those dollars? Why include provisions–aka “loopholes”–intended to promote or discourage targeted behaviors?

I’m still aware of the considerable pitfalls of using tax policy to mold desired behaviors; after all, we humans remain blissfully ignorant of the ways in which human incentives/disincentives actually work, and far too often, a provision intended to produce outcome A turns out to produce an altogether unanticipated and negative outcome B.

That said, I’ve reluctantly come to admit that carefully crafted and thoughtful policies can advance important goals. My husband recently shared with me an article from Bloomberg, reporting on one such success.

Cities, states and the federal government are trying to reduce traffic congestion, air pollution and carbon emissions, but a Catch-22 in the federal tax code works against these goals. The income tax exemption for employer-paid parking subsidizes solo driving to work, which helps explain why 81% of American commuters drive to work alone.

The tax exemption for employer-paid parking creates three big problems. First, free parking at work increases the number of cars driven to work by about a third, mostly at peak hours. Second, higher-income commuters are more likely to get tax-exempt parking subsidies. The tax exemption is also worth nothing to the 44% of American households who pay no income tax because of their low incomes. Third, free parking doesn’t help transit riders, who are disproportionately communities of color. In Los Angeles, for example, 92% of Metro riders are people of color.

Repealing the tax exemption for a popular fringe benefit is unlikely, but the discussion doesn’t end there. In a bid to reduce driving and increase fairness, the District of Columbia enacted its Transportation Benefits Equity Amendment in 2020. If an employer with 20 or more employees subsidizes parking at work, the law requires the employer to offer an equal benefit to employees who do not drive.

Called “parking cash out,” this policy gives commuters flexibility to choose between free parking or another benefit of equal value. Commuters can continue to drive and park free, or they can take the cash value of the parking subsidy and use it for anything they want, such as putting it toward the rent of an apartment within walking or biking distance of work.

California enacted a similar cash-out law in 1992. The California Air Resources Board examined the law’s effects in a travel study of 1,694 commuters at eight firms in Southern California. The 1997 study found that after employers offered the cash option, solo driving to work fell 17%, carpooling increased 64%, transit ridership increased 50%, and walking or biking increased 39%. These changes reduced vehicle travel to work by 12% — equivalent to removing from the road one of every eight cars driven to work. Employers reported that parking cash out was cheap, easy to manage and fair. It also helped them to recruit and retain workers.

This appears to be an example of policy done right: it was simple and easily understandable, it corrected inequities in the existing tax structure, and perhaps most importantly, there was ongoing monitoring by California–research to confirm (or not) that the policy change was working as intended. (One of the frustrations of policymaking in the U.S. is the usual lack of such follow-up and the difficulty of changing or abandoning interventions that have proven to be counterproductive.)

It’s getting more and more difficult for the science deniers to ignore climate change. As California and Oregon burn, as Miami spends billions of dollars trying to elevate its airport above the encroachment of the ocean, as national and international weather patterns become more and more destructive, it becomes critically important to identify and enact policy interventions that retard or at least minimize our more ecologically destructive human behaviors.

That may mean that the tax code continues to be considerably less than straightforward, but I guess I can live with that…..

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Stiglitz On The Environment

Today, I’m largely turning this blog over to Joseph Stiglitz, Nobel-prize winning economist who heads up economic research at the Roosevelt Foundation. Stiglitz recently testified before the Senate Budget Committee on what he–and President Biden–have both correctly termed an existential threat: climate change.

The following are excerpts from that testimony.The entire presentation is at the link.

Thank you for this opportunity to share with you some of my concerns about the large economic costs and huge risks of not taking strong actions now to deal with climate change, and the large benefits of doing so.

Some of the downside risks are already apparent. In one recent year, the magnitude of destruction associated with extreme weather events—which will inevitably occur more frequently, with ever more devastation as a result of climate change—was more than 1.5% of GDP, effectively wiping out more than 60% of the growth of that year.1 But this is only one dimension of what is occurring: Rising sea level will put much coastal property under water, destroying homes and property values. Forward-looking markets have already begun to price this in—but still far from adequately.2 3

Recent studies have documented the adverse effects of climate change on health.4 We pay for this in multiple ways, including higher health care costs and a less healthy population, which means a less productive workforce. But there is no way to accurately monetize the shorter life spans and the increased morbidity….

There are, of course, some sectors, some parts of our population, some locations that will be particularly hard hit. During the past year, we have seen the inequities associated with Covid-19. Those associated with climate change are equally severe, with people at the bottom of the income ladder often bearing the brunt of the costs, with fewer resources to respond. But there is an additional dimension of inequity that speaks to our future: While Covid-19 disproportionately affected older Americans, climate change is a risk that we impose on our children and grandchildren—on the future of our country….

Let me spend a few moments discussing the real risks our economy and society face if we do not take stronger actions than we have so far. We have been treating truly scarce resources, our environment, our water, our air, as if they were free. But economics teaches us that there is no such thing as a free lunch. We will have to pay the check someday. And delay is costly. Taking carbon out of the atmosphere is far more expensive than not putting it into the atmosphere. A smooth transition is far less costly than the one we will surely face if we do not take action urgently….

The longer we delay dealing with climate change, the larger the necessary adjustments will be, and the greater the potential for huge economic disruption—an economic disruption that could make the 2008 Great Recession look like child’s play by comparison.6 The danger of a crash is particularly acute for the U.S. economy, given that large U.S. banks are the largest financiers of fossil fuel….

Economics has, for good reason, been called the dismal science. The scenario of doom and gloom that I have painted is, unfortunately, all too real. But I want to end on a sunnier note. Doing something about climate change could be a real boon for the economy.

Too often, critics of taking action point to the job losses. Change is costly. But change provides opportunity. I am also firmly convinced that the opportunities afforded by addressing climate change are enormous. The number of jobs that will be lost in the old fossil fuel industries are dwarfed by those that will be created in the new industries. The value created in the new industries will also dwarf the value of the stranded assets in the fossil fuel and related sectors. As just two examples: the number of installers of solar panels already is a multiple of the number of coal miners; the auto company with the highest valuation today is Tesla…

The current focus on changing to a green economy is already stimulating enormous innovation, innovation that holds out the promise of significant increases in standards of living. The price of renewable energy has been plummeting, and in many areas outcompetes fossil fuels. The drive for a greener society is stimulating the design of new buildings and new ways of doing agriculture, which turn out actually to save resources, particularly if we value them appropriately….

Our country especially has much to gain, because innovation is a key comparative advantage. If we are ahead of the game—rather than a laggard—we will develop technology that will be in demand around the world. If we are behind the game, we will pay a high price. It is almost inevitable that other countries will demand cross-border adjustments that will put our companies at a disadvantage….

There is much more to be done to protect the economy from the risks I have described. For instance, we need immediately to end fossil fuel subsidies and require full disclosure of climate risks—both the risks of physical damage and the financial risks. Markets on their own don’t provide adequate disclosure, necessary both for the efficient allocation of scarce capital and for protecting investors. We need to change statutes governing fiduciary responsibility to mandate looking at these long-run risks, and especially where government is at risk, as in government insurance pension schemes…

There’s much more at the link, and it is definitely worth reading in its entirety.

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COVID Is Just The Beginning

Lest yesterday’s semi-optimism distract us…

The Biden Administration will undoubtedly ramp up production and distribution of the COVID vaccines, and most of us are desperate for a return to something approximating “normal.” It is highly unlikely, however, that we will recognize the next decade  or two as even approximating our version of “normal.”

The Brookings Institution has put the most positive possible spin on that reality, advocating for adoption of the U.N.’s Sustainable Development Goals. The report notes that the pandemic has put a spotlight on global problems like “food insecurity, gender inequity, racism, and biodiversity loss, alongside longstanding gaps in access to education, jobs, and life-saving technologies,” and points out that these are all problems that the Sustainable Development Goals address.

That’s clearly good advice, but it’s probably coming too late.

Pandemics are connected to climate change, and they aren’t even the worst of those consequences. The science deniers, fossil fuel interests and others who have retarded efforts to avoid the worst results of climate change may have doomed humanity, or a substantial portion thereof, to a future somewhere between dismal and dystopian.

Have you noticed the lack of insects the past several years? The absence of bugs that used to smash into our windshields? Fewer mosquitos and fireflies? That’s just the more obvious evidence of a collapse in the global insect population.

The world’s insects are hurtling down the path to extinction, threatening a “catastrophic collapse of nature’s ecosystems”, according to the first global scientific review.

More than 40% of insect species are declining and a third are endangered, the analysis found. The rate of extinction is eight times faster than that of mammals, birds and reptiles. The total mass of insects is falling by a precipitous 2.5% a year, according to the best data available, suggesting they could vanish within a century.

The planet is at the start of a sixth mass extinction in its history, with huge losses already reported in larger animals that are easier to study. But insects are by far the most varied and abundant animals, outweighing humanity by 17 times. They are “essential” for the proper functioning of all ecosystems, the researchers say, as food for other creatures, pollinators and recyclers of nutrients.

If that isn’t worrisome enough, recent studies suggest that previous warnings of planetary warming may have been understated. Media outlets are reporting that warming is likely to be more severe than previously expected. World temperatures could rise 15 percent more than expected this century. Ice sheets are melting more rapidly than anticipated as well, increasing sea level rise. 

We have already seen a dramatic rise in hurricane strength, wildfires and other results of our environmental heedlessness. Recent studies suggest a far more dangerous future.

Past models have suggested a 2 degree rise in global temperature. That’s bad enough-with a 2 degree rise, sea levels would rise by 1.6 feet, global heatwaves would become common, and subtropical areas would lose a third of their fresh water. Nearly all coral reefs could die. 

Now, studies are suggesting the planet might become 5.3 degrees hotter. That’s 33% higher than most previous estimates–and it would probably mean extinction of the human race on Earth.

According to a recent scientific paper published by the Breakthrough National Centre for Climate Restoration in Melbourne (an independent think tank),

Climate change poses a “near- to mid-term existential threat to human civilization,” and there’s a good chance society could collapse as soon as 2050 if serious mitigation actions aren’t taken in the next decade…

What might an accurate worst-case picture of the planet’s climate-addled future actually look like, then? The authors provide one particularly grim scenario that begins with world governments “politely ignoring” the advice of scientists and the will of the public to decarbonize the economy (finding alternative energy sources), resulting in a global temperature increase 5.4 F (3 C) by the year 2050. At this point, the world’s ice sheets vanish; brutal droughts kill many of the trees in the Amazon rainforest (removing one of the world’s largest carbon offsets); and the planet plunges into a feedback loop of ever-hotter, ever-deadlier conditions.

 “Thirty-five percent of the global land area, and 55 percent of the global population, are subject to more than 20 days a year of lethal heat conditions, beyond the threshold of human survivability,” the authors hypothesized.

Meanwhile, droughts, floods and wildfires regularly ravage the land. Nearly one-third of the world’s land surface turns to desert. Entire ecosystems collapse, beginning with the planet’s coral reefs, the rainforest and the Arctic ice sheets. The world’s tropics are hit hardest by these new climate extremes, destroying the region’s agriculture and turning more than 1 billion people into refugees.

Meanwhile, last year, 150 members of Congress—all Republicans—rejected the scientific consensus that human activity is driving climate change.

Apparently, humans will continue to fiddle while the Earth burns….

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