July | August 2017



by Katherine Barrett and Richard Greene
Energy policy and management in the states is, of course, a critical issue. It is linked to a variety of other topics, including the environment. In fact, in the research arm for The Council of State Governments—which is divided into a number of different policy areas—energy and the environment are covered under the auspices of one team.
With that in mind, we set about reviewing three reasonably current books that delve, in different ways, into environmental issues. All three are somewhat academic in nature, which has the advantage of providing readers with a variety of citations and references for further research and greater understanding.
One of the three deals with the federal government and its work for environmental justice. The second focuses on the courts and their role in this field. And the last takes things down a step closer to the street, explaining the job of regulators.
Following are our thoughts about the three books.

Failed Promises: Evaluating the Federal Government’s Response
to Environmental Justice

edited by David N. Konisky (The MIT Press, 2015)
The list of ills experienced disproportionately by poor and minority groups extends even to pollution. That’s the somber message conveyed by David Konisky in this collection of essays by a variety of well-informed writers. However, we believe the idea that the poor and various minority groups should not be exposed to toxic air and water any more than the population as a whole seems like common sense. And, in fact, during the Clinton administration an executive order was put into place that attempted to provide just that protection.
It was called Executive Order 12898 and was signed into law Feb. 11, 1994. Sadly, since its adoption this executive order has been a poster child for the gap that often exists between legislative or executive orders and the reality of the world.
Consider places like Brockton, Mass., which is cited in the book. It has a minority population of 40 percent and its median household income is 25 percent less than the national average. As the book points out, it experiences “significant environmental risks from existing hazardous waste sites and major sources of toxic conventional air pollution” that emanate from a gas-powered electric plant. At least in Brockton, this situation resulted in loud and clear voices of dismay from the environmental community.
Elsewhere, though, this kind of phenomenon has gone with relatively little dissention—just part of the landscape of the American environmental horizon.
In fact, a report that was issued in 1987 indicated that “race was the most significant variable of those examined in association with the location of commercial hazardous waste facilities.” Although one of the flaws in the book, published in 2015, is a reasonably heavy reliance on somewhat dated studies and reports, the essays present a compelling case that this situation hasn’t changed much since 1987.
So then, why is there a gap between the intent of the executive order and the world as it stands? Some of the major reasons, culled from a variety of the book’s chapters, include:
• The use of permits to ensure that poor or minority people aren’t subject to more than their share of pollution has been “limited and inconsistent.” The EPA’s Environmental Appeals board has “not overturned an EPA-issued permit on the grounds that it results in disproportionate impacts for either low-income or minority populations.”
• EPA regulators do not appear to have taken the idea of “environmental justice” into account when setting standards.
• There has been minimal evidence that the EPA’s enforcement practices have been altered since the executive order to monitor the activities of regulated firms in poor and minority communities.
• Additionally, when the courts have been involved in efforts to preserve environmental justice, the decisions have been largely negative for those fighting in favor of equity.
Although this book is low on good news for people concerned with environmental equity, it does hold out a ray of hope. Apparently the current administration has been somewhat more sensitive to this issue than prior ones—and there’s always a possibility that trend will continue. Among other efforts, “the EPA is finally developing the types of policy and technical guidance documents that have been sorely lacking in the previous attempts to implement E.O. 12898 and other federal environmental justice reforms.” Will new EPA commitments to environmental justice take hold and make a difference? The book’s editor is noncommittal. These questions “can only be answered in the years to come,” he writes.

Environment in the Balance: The Green Movement and the Supreme Court

by Jonathan Z. Cannon (Harvard University Press, 2015)
Back in the 1970s, the snail darter, a tiny fish that’s just a bit bigger than a paper clip, became one of the most talked about creatures in America when its endangered status led the U.S. Supreme Court to halt work on the Tennessee Valley Authority’s Tellico Dam because it would violate the Endangered Species Act.
The unambiguous language of that act, originally passed in 1969, seemed to leave justices no choice but to stop the project, even though $100 million had already been spent. But that didn’t mean the court necessarily liked the action it was compelled to take. As Jonathan Z. Cannon writes in Environment in the Balance: The Green Movement and the Supreme Court, the court opinion questioned Congress’s “unyielding preference for species protection,” which left no room to assess the costs and benefits of the project going forward. (Eventually, in fact, Congress passed an amendment allowing the dam to proceed.)
The enormous tension between environmental protection and development, including energy development, is aptly described in Cannon’s book.
Decisions in the years following the snail darter have drifted away from pro-environmental policy. They have more directly considered cost-benefit issues, favored individual property rights over collective environmental benefit, and refused to give standing to individuals or groups that seek to protect the environment from development.
In many ways, writes Cannon, the justices have reflected the deep tensions in society itself over environmental issues with Justice Antonin Scalia’s frequently biting opinions championing private property rights and business development and Justice Ruth Bader Ginsburg and retired Justice John Paul Stevens frequently acting as the champions for a more sympathetic approach to environmental protection.
Particularly interesting is the section of the book devoted to the National Environmental Policy Act, or NEPA, passed in 1970 and once hailed as the “environmental Magna Carta.” To hopeful environmentalists, the act had “potential to institutionalize an ecological imperative for all agencies of the federal government” by requiring review of the environmental impact of decisions. But from the beginning, the Supreme Court has made it clear that while environmental impact must be considered by the agencies, that’s all they have to do—the courts can’t require that they have to change their ways to react to the impact.
Cannon’s book is not an easy read for a non-academic audience, but it is informative and laced with articulate and sometimes entertaining opinions by the Supreme Court justices. Since the book travels across multiple decades in its coverage of environmental decisions, we did sometimes yearn for more attention to dates within the body of the text to more clearly anchor the decisions in time.

The Lilliputians of Environmental Regulation: The Perspective of State Regulators

by Michelle C. Pautz and Sara R. Rinfret (Rutledge, 2013)
Our desire to better understand more about the people who make the giant machine of environmental regulation work (or not) made Lilliputians attractive to us before we read the first page.
Most of the articles and books we’ve read about government have focused on the big shots—elected officials, cabinet members and agency heads. After all, these people are the ones with the greatest influence on policy making, regulation and high-level management decisions.
But we’ve often wondered why more isn’t written about the folks who are actually on the front lines, doing the work of government day in and day out, generally without the power to change the nature of their roles or tasks in a government. This relatively short book focuses on the men and women who work both in the field and in home offices to determine how well environmental regulations are being enforced in a variety of organizations ranging “from dry cleaners and funeral homes to major manufacturing facilities and water treatment plants.”
We were initially worried a bit by the title. The use of the term “Lilliputians” seemed to be pejorative to us. It brought up images of silly little Swiftian souls who could fight wars over the proper way to crack an egg. But in fact, the authors have defined that word in an entirely different way than we anticipated. As they write, “For us, Lilliputian is a positive term to call attention to the often unnoticed individuals on the front lines of environmental protection who are responsible for much of the heavy lifting of implementing and ensuring compliance with environmental regulation.”
Many of the book’s conclusions were based on a survey of more than 1,200 regulators from coast to coast. It was discovered that environmental regulators are a reasonably hard-working, competent group, despite the feelings of many of those who are inclined to use the phrase “government work” as a slur. Consider this: The authors’ survey indicated that most regulators have impressive undergraduate degrees in fields such as biology, chemistry, engineering and other natural sciences. On average, they’ve worked for their environmental agencies for more than 15 years. This fact, by itself, tells an important story. Generally speaking, many state jobs have a higher turnover rate, which can lead to employees leaving their jobs soon after they’ve become sufficiently skilled to move on to another position in the private sector.
Also of note, Lilliputians goes beyond the individuals at work and provides a solid understanding of the way environmental regulation works at the state level and ways in which regulators and the businesses they are regulating can work together effectively in a way that benefits all concerned.

About The Author

CSG Senior Fellows Katherine Barrett and Richard Greene are experts on state government who work with Governing magazine, the Pew Charitable Trusts, the Volcker Alliance and others. As CSG senior fellows, Barrett and Greene serve as advisers on state government policy and programming and assist in identifying emerging trends affecting states.