Monday, May 28, 2018

Calice

Bald eagle, Haliaeetus leucocephalus, on Alsek River
Rebounded from DDT, but now threatened by the Department of Interior itself
Aside from the Bill of Rights, the most valuable aspect of the U.S. Constitution is the balance of powers among the three branches of government, and the access ordinary citizens have to all three.

In the area of environmental protection, for example, Congress writes laws, executive departments (mainly EPA and Interior) promulgate regulations to implement those laws, and the courts ensure that the intent of the laws is reflected in the details of the regulations. Citizens can participate in public hearings on proposed regulations, and can file suits if the regulations do not seem to meet legislative intent.

The system is currently under stress, however, as secretaries of several executive departments were nominated primarily on the basis of their antipathy to the mission of their departments. Interior Secretary Ryan Zinke, for example, is responsible for the protection of public lands, but is ideologically opposed to the very concept of public lands. (The exception is in his home state of Montana, a character flaw I explored in my Secretary NIMBY post last November.)

The Senate, of course, has the responsibility to confirm the nominations only of persons qualified to carry out their constitutionally-mandated duties. It would seem that open hostility to the purposes and programs of a department would be a disqualification, but the current Senate has not seen fit to carry out even that minimal level of oversight with respect to the departments of Interior, Environmental Protection, Education, and several others. In some cases a Senator of the President's party has risen to speak against a nominee, but none has voted accordingly, with the sole exception of the vote to confirm a CIA director with an ambiguous (at best) record on torture.

My course on environmental regulations will be a bit complicated in the fall. A wrecking ball has been taken to the relationships among law, regulation, and guidance documents. It will take lawyers and judges years to fix the paperwork damage, and some of the real-world damage will never be fixed. The implementation of regulations through law has always been subject to political wrangling, and particularly in many areas of environmental law in which the public good often has serious opponents with narrow economic interests. The 2018 version of this course will be the best opportunity I have had to explore the machinations that are always present to some degree.

A New Level of Obstruction

The failure of the Senate to fulfill its "advice and consent" responsibilities, however, has resulted in some situations that are different in kind, not just degree, from the manipulations of prior administrations. A recent example in Secretary Zinke's department is the directive to wildlife officials to Shut Up About Mandatory Endangered Species Permits.

As reported by journalist Mary Papenfuss, new wildlife regulations will allow applicants for Federal permits to make their own decisions about the applicability of the 1973 Endangered Species Act, and to avoid adverse decisions by simply not including possible habitat-related takings in their application materials. This will be achieved by prohibiting wildlife staff from mentioning the requirement.

The order challenges the Act's requirements related to the non-deliberate loss of endangered plants and animals by means of habitat change. These have been critical to the effectiveness of the Act. Thy have also proven most bothersome to property developers who see themselves as gaining little from their share of the aggregate benefits of such protections while paying a high individual cost. This is an instance of Garrett Hardin's classic Tragedy of the Commons, which the Congress specifically set out to address.

In the 45 years that the Act has been in force, a couple of presidents and Interior Secretaries (most notably James Watt) have sought to weaken it, and of course many court challenges have been mounted. The current gag order is an effort quietly (silently, in fact) to give developers what they have been hoping for, without the open processes of Congress or the Courts.

Advocates for preservation, of course, will find their way to the courts, but in the process will reduce their ability to do actual environmental work or to contest the Administration's maneuvering in other areas of regulation. Forcing advocates to re-litigate an entire century of environmental law, of course, is part of the Administration's scorched-earth (that's not just a metaphor) policy.

Creeping Authoritarianism

The order imperils both the eagle and the freedoms it represents.

The order is also an infringement on the heretofore American values of free speech and due process. When a government entity orders its citizens -- even those who are government employees -- to shut up about that which they know or believe to be true, one cannot help but think of authoritarian regimes -- and of resistance to them.

The particular phrase "shut up" brings to mind the Portuguese equivalent, cale-se. It is a homophone of calice, or chalice. It is the title of Chico Buarque's song of resistance during the height of the 1964-1985 military rule in Brazil. I describe the song and its uses in two earlier blog posts, Creative Resistance and Overcoming Condor.

The short version of the story is that Buarque's song was on one level about the Last Supper and the Passion of Christ (chalice), while on another level it repeated and mocked what the regime was always telling resisters: shut up.

Although my first visit to Brazil was a decade after the end of the dictatorship, I have done a lot of reading and thinking both about the regime and about the resistance to it, so this song is also mentioned in several other posts, most importantly Wrestling the First Amendment. I am beginning to find unexpected relevance to the politics of resistance in my own country.

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