Wednesday, March 28, 2012

Limiting Principles, Health Care, Wetlands and the search for a Nexus.

Listening to the analysis of the ACA -- okay, "Obamacare" -- verbal arguments yesterday, I began to get very strong feelings of deja vu.  In this case, it appears that Justice Kennedy is pressing General Verrilli, searching for a "limiting principle" that would allow the government its traditional latitude concerning commerce regulation while preventing a situation in which the government can simply transform any issue into one of commerce by requiring that it be solved through a commercial transaction.  Where is that bright line?

Anyone else thinking of the most traumatic elements of both SWANCC and Rapanos?

The SWANCC connection is obvious.  For those who don't follow wetlands law, SWANCC v. US Army Corps of Engineers (531 US 159) was the 2001 case in which the Supremes struck down the Corps' 1985  "migratory bird rule" which declared that since migratory birds are elements of interstate commerce (people spend millions of dollars to cross state lines and birdwatch), any wetland visited by a migratory bird is subject to federal regulation under the dormant commerce clause.  First, let's revisit Article I, section 8 of the Constitution:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
This was the only way that the Corps could require permits for impacts to waters that were fully isolated from navigable streams.  Most glaciated landscapes are full of such wet depressional areas, and they constitute the most valuable duck-breeding areas in the US.  But the rationale was always a stretch because it completely ignored navigability, which is near the foundation of the CWA's concept of "waters of the US".  It was a landmark case, and served as warning (mostly unheeded, to listen to General Verrilli yesterday) that there are limits to the dormant commerce clause: though it may be very sleepy, it must not be out cold.  The NPR commentary yesterday made it sound like limits to the commerce clause have been unheralded since the 1930s, but in fact judicial skepticism on this front was foreshadowed in the same Chicagoland glacial landscape that 8 years later produced SWANCC.  In his 1993 concurrence in Hoffman Homes, Inc. v. EPA (263 F.2d 999), Judge Manion wrote:
The commerce power as construed by the courts is indeed expansive, but not so expansive as to authorize regulation of puddles merely because a bird traveling interstate might decide to stop for a drink.
Rehnquist's opinion in SWANCC produced some really fun language and the opinion is worth reading in its entirety.  The later Rehnquist court was already notoriously intolerant of expansive readings of Commerce Clause authority, and he took this opportunity to spank the Feds, hard:
… there is nothing approaching a clear statement from Congress that it intended [Clean Water Act] §404(a) to reach an abandoned sand and gravel pit such as the one at issue. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule would also result in a significant impingement of the States’ traditional and primary power over land and water use.
…neither this, nor anything else in the legislative history to which respondents point, signifies that Congress intended to exert anything more than its commerce power over navigation.
So it should be no surprise that the Court should be contemplating limits on Commerce Clause power.  But the real similarity between yesterday's argument and wetlands jurisprudence lies in Kennedy's search for a "limiting principle."   Or, "nexus", as we in the wetlands world know it.  Where is the bright line that separates areas relevant to navigability from those that are not?  Those that are, said Kennedy, have a nexus to navigability.  In 2006 Kennedy's concurring opinion in the Rapanos v. US (547 US 715) turned the world of wetlands jurisdiction upside-down by affirming, in his frustrating manner of intellectual purism, that regulators must articulate a definable "nexus" between a navigable water and the site of a proposed project for a permit to be required.  In so many ways, the Obamacare case looks like it's coming down as another Rapanos decision -- with the conservatives writing a conservative opinion, the liberals writing a liberal one, and Kennedy finding a way of drawing a bright line which ends up being the controlling opinion among a 4-1-4 mess of pluralities.  Rapanos produced no fewer than FIVE separate opinions, and Kennedy's ended up being the one that split the baby in just the right way.  Kennedy's solo concurrence ended up gathering more support than the plurality Scalia opinion because Stevens, in dissent, said some nice things about Kennedy's rationale.  Basically Kennedy and the conservatives formed a majority to overturn, but Kennedy and the liberals formed a majority finding that the nexus with navigability should be very broadly interpreted  So it was a big mess.  I was driving around suburban Boston the day it was released, frantically calling EPA HQ trying to figure out if we'd won or lost -- a week later, we still weren't sure.

The recent release of draft jurisdictional guidance by the EPA and Corps instructs field staff as to how to find the "nexus" between navigability and a site in question: it can be through a hydrologic connection, or it could be through a LACK of hydrologic connection if that barrier is what renders the wetland of service to navigability.  This kind of abstract thinking is the mark of Kennedy, and although it must infuriate both liberals and conservatives on the court, it certainly put the scientists to work in defining all the ways that ecological and hydrological features of wetlands could influence (create a "nexus" with) downstream navigability.  In many ways, Kennedy forced a question that everyone had been happy ignoring: what is the science of the natural phenomenon that create navigability?  Base your jurisdictional decision on that science, and all will be well.

But that's hard!  Yup.  Corps staff, once the new guidance is in place, will be forced to work much harder and document more fully the status of the proposed impact site.  Before 2001, all you had to do was look for a bird.  Such is life in the Kennedy Court.  His bright lines are sometimes ordained without regard to the kind of knowledge required to draw them in a practical sense.

So you heard it here first.  Everyone's expecting a simple Yes or No after yesterday's arguments.  But I expect Kennedy to author an opinion which agrees with the conservatives that the ACA overextends its reach, but then agrees with liberals in defining a nexus/limit that makes the command of health care markets allowable while disallowing other uses of federal commerce power.  All signs point to this being another situation in which Kennedy's search for underlying principles will hold the balance of power again.

And as a special and irresistable callback treat, here's the "nexus" between wetlands and broccoli, that vegetable much-maligned by George HW Bush in 1990, and now the hero of Scalia's arguments concerning Commerce Clause overreach: "Of Broccoli and Marshes" by Frank Graham in Audubon Magazine, July 1990.  Sorry, the images didn't photocopy well back in the day.

ps. Small ironies abound: Paul Clement, now arguing for the plaintiffs, was the Solicitor General who defended the government in Rapanos. Full disclosure: I wrote some of the science briefs that went to General Clement.

Tuesday, March 6, 2012

Wetland Policy Timeline

A bit of home news, along with announcing a new resource.  I've finally set up the Wetlands Policy Timeline on my academic website: this is something I've been compiling since my time at EPA, and eventually nearly all the entries will link to original documents (regulations, statutes, court opinions, etc.).  The idea is to document the development of wetland science, policy, culture, legislation, regulation, jurisprudence in American life from, essentially, the Swamp Lands Acts onwards.  It's profoundly unfinished at the moment, and only goes up through about 2001, but is particularly rich in the "golden age" of wetland policy from 1986-1991.  Keep an eye on it as links are attached over the next few months!

Ecosystem Services 1970s-style: The O.G.

Ecosystem services folks are a relentlessly forward-looking crowd -- the field typically spends very little time in navel-gazing or genealogy.  But since academics specialize in the latter activities, and somebody will eventually write the history of the approach, I wanted to remind everyone of one of the germinal papers: Walter Westman's 1977 article in Science entitled "How Much are Nature's Services Worth?"

Was this the first use of the term "services" in connection with the kinds of things we mean today when we say "ecosystem services"?  Probably not.  The term was an outgrowth of the ecological economics approach of the late 1960s, and a natural contrast with the typical resource-economics treatment of nature as a set of material "goods".  But it probably was the first programmatic research statement to make it into the highest echelons of academic publishing -- the first clarion call to sound, as it were -- using "services" in a way immediately recognizable in today's debate.

Here's what's cool about Westman's piece.  First, he immediately fingers the deepest issue underlying all attempts to define ecosystem services: the central role concepts of rationality and utility play in our politics and economics.
 "And yet, in the inexorable quest to rationalize the activities of the civilization, policy-makers in Western societies have increasingly asked the monetary value of items and qualities formerly regarded as priceless:..."
This is big-picture philosophizing of the kind that was part of the zeitgeist of the 1970s: noticing the water we're swimming in. It now sounds dated or unhip, or perhaps a bit wild-eyed, to talk about such things as "civilization" and "Western societies".  Too bad -- we're still swimming in that water.

But the payoff of such big thinking is that, second, he really does define an entire research program, asking questions which still have no answers, 35 years on:
"It is important at the outset to recognize some of the corollaries inherent in assuming the decisions that maximize benefit:cost ratios simultaneously optimize social equity and utility. (i) The human species has the exclusive right to use and manipulate nature for its own purposes. (ii) Monetary units are socially acceptable as means to equate the value of natural resources destroyed and those developed. (iii) The value of services lost during the interval before the replacement or substitution of the usurped resource has occurred is included in the cost of the damage resource. (iv) The amount of compensation in monetary units accurately reflects the full value of the loss to each loser in the transaction. (v) The value of the item to future generations has been judged and included in an accurate way in the total value. (vi) The benefits of development accrue to the same sectors of society, and in the same proportions, as the sectors on whom the costs are levied, or acceptable opposition has been transferred."
We have well and truly whistled past these questions, with the clear exceptions of (iii) and (v), which are accounting questions involving discounting and baselines. And it's not only that the rest remain to be answered, it's that even asking them is a problem.  Try this at the next ES conference: stand up after the keynote and ask "Does the human species have the exclusive right to use and manipulate nature for its own purpose?"


And perhaps that's as it should be -- hard to move forward with real policy when you insist on metaphysics.  But let's just note that most of these remain unresolved and ignored.  For the most part these are quite radical questions about distributional equity (vi), value theory (ii and iv) and the nature of moral action (i).  ES scholarship and policy has moved forward mainly by accepting the mainline economics-textbook answer to these potentially-paralyzing topics.  Value is utility proxied by money, distributional equity is assured by the two theorems of welfare economics, and morality is expressed in preference revealed by market actors.  These are all the answers that make the rest of the social sciences so exasperated with Economics, and reflect a profound uncuriosity about the nature of human thought and agency in the complicated social world of markets. 

His definition of services is aimed mainly at combating the notion of nature as a set of material goods, the vew so prevalent in most of economics at the time: "The functions of an ecosystem, on the other hand, are characterized by the ways in which the components of the system interact, they are the dynamics of ecosystems -- nature's free `services.'"

In fact, a good part of the article is taken up with this fight against the mainstream approach: inasmuch as "substitutability" (of natural resources with manufacture) was a fundamental tenet, it had to be defeated by environmental economics and ecological economics.  Part of this was defeating the "replacement cost" method of assessing the value of nature, which Westman targets at length.

But a more modern concern surfaces towards the end: stacking and bundling.  He is clear about the idea that "services" cannot easily be separated from each other, and that ignoring this integration of multiple services can lead to deceptively simple stories:
"It is well to remember that these calculations represent only partial costs of the loss of the pasture, since the plants will at the same time absorb other pollutants, bind the soil, maintain a certain radiation balance, and fulfill other functions."

"It is in part because of the interconnected nature of the complex systems of nature that valuation of individual services lost is so inevitably misleading."
Oh, and he was on top of the whole non-linearity of nature, something which still gives the best ecologists in the business headaches when economists ask them for response curves:
"Yet one is plagued here, as when assessing other isolated development projects, with the fact that there may be a nonlinear relationship between the destruction of a certain amount of habitat and the resulting perturbation of the climate."
In the end, what sets Westman above and apart is that he squarely faces the political nature of ES talk.
"Evaluating the contribution of ecosystem functioning to human welfare is a complex task. It is the task of weighing human social values and is the quintessential task of politics."
Today, it is common for markets or dollar-valuation to be invoked a way to avoid politics: if there is a difference between 1977 and 2012, it is that describing nature as a commodity or valuing it in dollars are now generally accepted (in most ES talk) as ethically, politically, morally, and technocratically neutral elements of policy.  Indeed, one finds scientists and environmentalists of many stripes invoking dollar-valuation as a way just to get everyone "on the same page".

In the end, Westman is committed to using ES as a way to combat the wrongheadedness of traditional resource economics, but exceptionally clear-eyed (or skeptical, depending on your view) on the potential of thinking of nature as services:
"Although the literature on environmental cost-benefit analysis is becoming increasingly sophisticated, in the eyes of many in our society it has not yet improved upon the poet's summation of nature's worth."
Such a civilized and almost romantic response!  And a research charge for us in ecosystem services scholarship: "Improve upon the poet."  We will fail, but at least the attempt will be worth reading.