Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR ZYGMUNT PLATER
Professor Plater specializes in environmental, property, and land use law. His book, The Snail Darter and the Dam (Yale University Press), the story of a small endangered fish’s travels through the corridors of American power, is being made into a documentary. He was chairman of Alaska’s legal task force after the wreck of the M/V Exxon-Valdez, provided research for the Deepwater Horizon Commission, and was a consultant to plaintiffs in Anderson et al. v. W.R. Grace et al., the subject of the book and movie A Civil Action.
What does the novel coronavirus teach us about the climate crisis? The viral plague teaches us that multiple changes need to be made at an unprecedented systemic level. There are now three such existential crises that call for societal governance: pandemics now and to come, deeply inculcated racism, and climate’s planetary threat. All three crises are suddenly visible to all, and responses that may have seemed radical in the very recent past now seem necessary for societal survivability. The rising activism in response to these crises will bring change; it won’t be easy, but I think it will be inexorable.
Does the pandemic suggest new ways of fighting climate change? We’ve long known how to fight climate change, most importantly by putting a price on carbon. The only question is how to get past the so-called iron triangles: the coalitions of individual economic interests like the fossil fuel industry, the agency officials who are supposed to regulate them, and the cliques in Congress that do their bidding. We are now realizing the necessity for adaptive, progressive governance processes, and that shift will inform all three areas of crisis.
How does one get past regressive systems and iron triangles? Two pioneering cases from the 1960s gave citizen groups standing to sue in court to enforce federal law against regressive establishments and iron triangle blocks. In one environmental case, the Second Circuit allowed a conservation group to sue a federal agency to stop construction of a mountain-excavating power plant because the group had a “special interest in aesthetic, conservational, and recreational aspects” of the mountain where the plant was going to be sited. Essentially, the ruling provided citizen groups a way of speaking truth to power. It was a strategy pioneered by Martin Luther King Jr. and has reflected in a number of areas besides environmental protection. And although many activists don’t know it, the Administrative Procedures Act of 1946 also allows any person to petition federal agencies for the making of a specific proposed regulation—presenting its text, backed by data and arguments. That, too, can create powerful interventions. Media coverage also is showing that it can be strategically effective by exposing detrimental practices and conditions and raising public awareness.
A recent study found that the lockdowns in Europe dramatically reduced death rates by reducing air pollution. Describe a world where the environment poses less of a threat to public health. Poor people, disempowered minorities, tend to live in pollution hot spots. They have more asthma, more pneumonia, more lung cancer. It’s one reason why that demographic has disproportionately suffered illness and death. With less pollution, many people would be living lives that are far less desperate. Now we can see that, and we can hope that this and other reparative actions will follow.
You have called for “a philosophic principle” against “regression,” including the many rollbacks of protective environmental regulations in the past three years. How could such a principle be enshrined in law? An executive order could do it. Candidate Joe Biden could say, “My administration will immediately review all government regressions that harm public welfare.” I can see this as powerful campaign rhetoric, and a critically necessary restoration of trashed public protections. In Brazil, the highest courts have adopted non-regression, although that’s not as likely with ours. Nor is a constitutional amendment. A statute would help, and it could be done. The draconian Congressional Review Act of 1996 gives Congress the power to overturn any new federal regulation; perhaps it could be repealed in a statute that then required that “all future regulations that backtrack on public protections shall be brought to Congress for non-regression review.”
Have any industrial democracies responded to crises more effectively than we have? Sure. Look at South Korea. Look at Taiwan. Costa Rica, despite a substantial portion of its population living in relative poverty, has impressed international observers with its effective control of the coronavirus. It has combined decisive action by its central government with well-thought-out epidemic preparation in its universal health-care system and good communication with a population that’s been given consistently sound information and trusts the government’s pandemic ground rules. Germany has done remarkably well in many areas, including the pandemic and the climate crisis. Their energy system used to be completely dependent on coal, and they’ve rapidly moved away from that. Their Covid-19 responses, too, were immediate, resilient, and highly adaptive to the evolving scientific data.
Why have they done better? Maybe because they don’t have 40 percent of their population that is uninformed. We do. Our insulation by two oceans, our national exceptionalism, our racism, and our frequent narcissism often prevent us from accepting what the rest of the world understands. Also, these most effective systems tend not to have such powerful iron triangles as we do.
But because visible disasters like plague, continuing racial repression, and climate calamities trigger existential societal responses, we should expect that now, here in the USA, big changes are on the way.
Read all faculty Vision Project interviews here.