In this episode, Seyi and Reza discuss the future of environmental regulation. aka Chevron Deference. They explore the historical origins of environmental regulation, the role of activism in driving change, and the recent shift in power from agencies to the courts. They discuss the potential benefits and challenges of this shift, including the opportunity for policy experimentation and community advocacy, as well as the potential for confusion and inefficiencies. They also highlight the importance of clear legislation and collaboration between agencies and Congress. Overall, they remain optimistic about the potential for positive change in environmental regulation.
environmental regulation, activism, Chevron deference, agencies, courts, policy experimentation, community advocacy, legislation, collaboration
Takeaways
- Environmental regulation has its roots in activism and the push for change in response to environmental pollution incidents.
- The recent shift in power from agencies to the courts, known as the Chevron deference, has both positive and negative implications.
- The shift allows for policy experimentation and community advocacy at the local level, potentially addressing issues that may not receive attention at the federal level.
- Clear legislation and collaboration between agencies and Congress are crucial for effective environmental regulation.
- While there may be challenges and potential inefficiencies with the shift in power, there is also an opportunity for innovation and creative approaches to regulation.
Titles
- The Shift from Agencies to the Courts
- The Role of Activism in Driving Change
Sound Bites
- "Agitation and activism have played a significant role in the passing of laws and regulations for addressing environmental issues."
- "The recent shift in power from agencies to the courts raises concerns about the potential erosion of environmental protections."
- "The shift in power allows for more localized interpretation and advocacy, potentially benefiting communities."
Chapters
00:00 Introduction and Overview
06:21 The Shift from Agencies to the Courts
13:31 Policy Experimentation and Community Advocacy
25:45 Balancing Challenges and Opportunities in Environmental Regulation
30:36 Mailbag and Conclusion
(upbeat music) - Hello, hello, Reza, how are you? - Hey, Shay, I'm good, how are you doing? - I am good, I am good. We are on episode eight of Future Forward. - Unbelievable, we keep rolling. - We keep rolling, and this episode, we're going to touch on the future of environmental regulation, and for our new listeners, this is a podcast, a conversation, really, that Reza and myself have been having for years, it's called Future Forward, we explore the future of cities, and we provide strategic foresight about what will happen in our cities based on the historical events and activities that we see that have led us to the present. - Yeah, I'm excited about this one, Shay, because we kind of touched on this in the last episode, and we have touched on it almost in every episode, because if you have a city, you need some type of regulatory structure because there's just so much in that system that is happening, and we talked about it in the episode on the future of water, and you'll start that threat over there, but more importantly, it's sort of topical because of this recent change that came about with the Chevron deference. Let's start at the start, Shay, talk about environmental regulation and how it got started and why. - Yeah, yeah, so as you just mentioned, we did talk about it, but we mentioned the Koya-Hoga River Fire, which was a 1969 environmental pollution experience that led to a fire in what is a 100 mile river located in the northeast of Ohio, flows through Cleveland, empties into Lake Erie, and up until the late 1960s, pollution from manufacturing and industrial activities had been essentially damaging this river body, which was also providing water to communities downstream of the river. It culminated in this fire, which most people in the industry ascribe the eventual regulation, which we all know as the Clean Water Act, which came in 1972. Most people attribute the eventual, the agitation and the groups that started to make a lot of noise as a result of the fire that happened on the Koya-Hoga River. And it, I'd say, is sort of the genesis of what we now know as some of these activist movements that lead to eventual passing of laws and regulations for addressing a lot of the issues we face as communities and people who live in cities, so food regulation, environmental regulation, it all seems to stem from agitation. So I'll quickly reel off a few groups that were involved in the agitation that led to the Clean Water Act. The Sierra Club, this was one of the main groups, they're still around today. And there were a bunch of environmental organisations as well, the National Wildlife Federation, the Isaac Walton League and public officials, the mayor of Cleveland, his name was Carl Stokes back then at that point, and then the media played a big part as well. So all this agitation led to Congress taking up this decision to regulate the desire of the people, which is Clean Water at all times, not polluted by some of the commercial activities that was going on. The interesting thing is Nixon vetoed the Act, a bipartisan group of Congress people signed it back into law. Every other regulatory, federal regulatory activity for the few years after that from the 1970s to the early 1980s was all coming through Congress as a result of people agitating. - Interesting. So it seems, so my takeaway there is, there was an event, there was a community involvement that then led to legislation that led to regulation. And that's kind of how, that started how these regulatory, like things like the Clean Air Act, similar with energy and food and things like that, that was kind of a pattern for driving the activism and the regulation that was needed from it. - Yes, absolutely. It sort of overlaps with, again, we've said this almost a very episode where there was some agitation and things start to sort of change and shift. So you are correcting your assessment of what that pattern was. But in 1984 under, I believe, the Reagan administration, it shifted. It was a case between Chevron, USA, the oil company and NRDC, National Resources Defense Council, where the NRDC wanted to get regulations or fines, enacted against Chevron because of some pollution that was attributed to a plant, a Chevron plant. The NRDC wanted the plant to be held responsible, but the Chevron deference, which is the name, we now know that regulatory change as today, shifted the responsibility for finding or punishing Chevron to the agency, which is the EPA, if I remember correctly, which is responsible for implementing the Clean Water Act or the Clean Air Act. So that case shifted how agencies where, shifted how agencies were left to determine who was responsible, what the amount of accountability was supposed to be and the consequences of any flouting of those regulations. And that, I think, is the real sort of shift here. The understanding, then, was the agencies, which are led by non-political individuals, in charge of enacting whatever regulations that ensure companies, entities, individuals followed the regulations. - Yeah, yeah, interesting. So I like the way that you're framing that this was like a shift in power. And I think that's what we're gonna explore in this episode is these shifts in power. So Shay, bring us to today, 'cause I have some comments about agencies and I'm curious about the most recent episode. We had this change with the Chevron deference, so bring us up speed on that. - Yeah, so a few days before this recording, the Supreme Court ruled that the enforcement and the creation of regulations will shift again. It's really what's going on here. It is, especially in situations where there's some ambiguity that requires what would have previously required expert opinion to determine or clarify the ambiguity. So in the Chevron case against the NRDC case against Chevron, core ambiguity was should the plant or the chemical that is coming from the plant be held responsible for the damage. And so it was this, the NRDC wanted this broad definition, which was the plant, but Chevron deference made it such that all of the Chevron's defense was that no, it is the chemical, not the whole plant. And what the Chevron deference the Supreme Court have changed recently a few days ago is who determines the and clarifies that ambiguity that exists. And the case for those who followed is Loper Bright Enterprises versus Ramondo. And Ramondo is one of the secretaries under Biden's administration. And Loper Bright Enterprises to fish, I believe a fish company. Anyway, the point without over-complicating this is that who has the power to interpret, clarify ambiguities and determine the consequences as shifted from the individual agencies to Congress. And the general reaction to that is because of how partisan our current environment is. And I say Congress, but some of these will also go to some of the lower courts and the lower government, sorry, not agencies, the political, judicial arm of city, states and the federal government. What we're reacting to, right, I believe, 'cause the general reaction to this has been, this is horrible. And it is horrible because of our current political climate, not in my opinion, not in the change in who has. The power, what we think of those who have the power now. - Yeah. And I think that's the crux of it, 'cause I remember us exchanging texts and I had this visceral reaction against what the judgment was. I just felt like this is more of the same with this current Supreme Court, just stripping away power from where it should be and going in a more direction that's worse for our environment. But I think we have formed a more nuanced opinion since then and that's what we're gonna try to explore because there's a trade-off. I think that's what we're gonna talk about. We have these four entities. You have the legislative branch, you have the judicial branch, you have these agencies, and then you have the public and the communities. - What we're trying to explore over here is what is the right balance for forming environmental regulation between these groups, between these sources of power? This judgment has shifted the power and the initial reaction could be this is not good, but I want to explore with you like, what is good and not good? Ultimately, which is what I always come back to is like, what is good and not good for our communities based on what is. - That is a fantastic framing of why we haven't taken this on as a topic today because we got clear. Once it came out, it became immediately clear that it is now the courts that will exercise their own judgment in the interpretation of some of the statutes and the regulations. Another thing that is clear is that it is now limiting the power of the agencies that are involved up until now in determining those statutes and the interpretation of those statutes and clarifying the ambiguities. What I think hasn't been clear in most of the conversation about this is the elevation of the ability and the input of communities, advocacy groups, entities that are saddled with and have chosen to do the work of ensuring cities work for all. This actually gives them more to, I believe, advocate for the things they care the most about. - Interesting. Working with the experts in those fields. The reaction was to the first two of those points. The reality is if we reframe it and as advocacy groups, entities that work in these spaces in water, advocacy, energy poverty, advocacy, we actually now have a lot more input and a little bit more power I would dare say. So advocate for the things we care about instead of what was the traction approach where it was the experts in those agencies that determined what got taken up as rules and regulations. - Interesting. I love that, Shay, your optimism and love your optimism bringing that there is something good that can come from this even though it looks bad off the bat. And so I want to pull on that thread. So it almost seems like you would think that agencies would be advocates for these communities, but they don't seem to be. I wondered, like agencies sometimes have political appointees that even though they have experts working at those agencies, they're led by political appointees that might not be aligned with what a community would want to do. And so you go through these swings in agencies of like a democratic government with a democratic appointee and a Republican government with a Republican appointee. And so you have these swings where maybe you don't have a way for communities to engage consistently. And so what you're saying is maybe through legislation and judicial bodies, there might be more of an avenue for a community to agitate at a level that can address the challenge that they face at their community level. Is that- - I truly believe so. That is exactly what I'm suggesting. And we can actually dive into some examples here, which I think is what you're offering that I should take on. So I'll use the San Joaquin Valley region. - California, it is the heartland of most of the fruits and food that comes from the California, the state of California. The wild and crazy thing that's been going on, and this came about through some work we were doing when I was running Veruna and we were working with Imagine H2O, which is this fantastic incubator out of California that focuses on the water. Kelly, the lady who was in charge of this, she made it known and introduced us to some individuals who lived and worked in the San Joaquin Valley region. In a region where you have companies moving tens of millions of gallons of water daily across the state with through pipes, the farmers who are working on those farms did not have water coming out of the taps in their homes. - Taste. - And so they were suffering from what we, I believe, call water poverty in this case. And I don't even go to touch water quality because that's a whole other. This was water poverty as a result of the actions of some companies and the only people who were pushing to rectify this, where advocacy groups who were trying to work with us at Veruna to get data about the state of water in the state, and the situation of water in the state, to take this as part of the information they would take to legislative groups, entities in charge, the EPA to try and address this, but they were getting nowhere. They were getting nowhere. With this change, their advocacy, their agitation will have to be taken up. At the local level, at the local judicial level, it will have to be taken up. Before it could just be brushed off. And I'm hopeful and positive that this shift leaves room for a lot more people to stand in front of the people who make the regulations and say, this isn't right. Here's the data to say, this is how the community is suffering from this injustice or environmental issue, how can we not allow us to address that? That I think is a shift that we should take advantage of as we do the work yet. - So this allows some decentralization of power down to a local level to address an issue that maybe would not be sort of get any voice out of federal level. - Yes, it does raise one thing because where we will now see most of the struggle is localized interpretation that removes the standardized approach to enacting regulations. So a few episodes ago, you talked about just the value of standards and how it allows us to move things forward. Well, when the local advocacy group in West Texas figures out a way to enact some laws that do no good for the communities in East St. Louis and they have to do the work themselves, the localized interpretations will leave room for a lot of inefficiencies. - Yeah, so it's like the trade-off, like it will create inefficiencies, will it improve the quality of life at the level of those communities? Like will they actually make them thrive better or will the inefficiencies make it even harder? It reminds me of one thing, Jay, that you brought up on the last episode where we were talking about stagnation in regulation in water. - Yes, water. - And there is value in standards, but we also had stagnation. - We did. - So I want to kind of counter with that because that's a failure of centralized standards. - It is, it is. And so the less optimistic side of me will say that lack of standardization and the confusion that this change in the law in the Chevron difference causes is the point. Just the dissipation of the energy of advocacy groups and the localization and the confusion that this causes is really sadly the point. - That's right. - So where we've failed on the water side to address a lot of the evolving situations due to environmental and climate change and some of the water scarcity issues and the water quality problems we've been having, even though there were not a lot of laws being passed, the ones that were there sort of held things together for the most part. We weren't seen enough innovation in the US especially, but even just having those standards held things together for as much as it could here in the US and we see that breaking now. But as we mentioned on that same podcast episode in Israel, knowing what the base expectations were for water quality standards and the spur of just innovation that happened to meet those standards at the national level is a model for what can happen when there's federal standardized regulations and laws and you don't lose the innovation. It's possible. - Yeah. - But the less optimistic side of me says in the US, we have been innovated as much as we should. The regulations in place aren't as strict and consequential as they should be. And now we're going into a legal era where we will be dissipating the power of the experts and the agencies into these like judicial arms that in some cases will choose to consult with experts in some cases will choose not to. And further, and I hope this is not the case, but in my further erode ability to protect the most vulnerable through regulations and environmental regulations. - Yeah. - Shay, like if we try to project forward, like if we revisit this episode in a year, what are some things that you'd be watching for to see are we moving in that positive optimistic shade direction or that of this doom and gloom of like will we not be able to protect our communities in the ways that we have done doing well so far? - Yeah, yeah. So, yes, I'll definitely keep it very optimistic. 'Cause I do believe in the midst of chaos is a ton of opportunity as well. - Yeah, yeah. - The first one, there are few things I'd love for us to look back on and see that have happened, experimentation is one, policy experimentation, especially. - Yeah. - Can we borrow if a place on the south side of Chicago figures out some regulatory frameworks that ensures clean, available water for the communities? Can we experiment with those policies in other parts of the country? I think that would be a positive benefit of this. We will need, the second thing is we will need Congress to draft clearer legislation. Working with agency experts so that it's more of a collaborative approach instead of what has been contentious up until this point. That would be the second one. And that same collaborative approach that Congress needs to have applies to the third element of my optimistic view on what this Chevron deference will bring. It's the courts having a more balanced, interpretive role crafting these policies with agency expertise. I will always go back to that because expertise will never stop being required in these core critical areas. - The agencies, because they have experts, and for the most part, the people who work in the agencies are experts, not political appointees, the fourth point here is that I trust they will stay resilient despite these changes and continue to do the good work. And I actually think this might lead to innovation at the agencies as well. - Oh, interesting. - 'Cause they will need to get creative. The thing is, once power or resources are removed, most businesses do this a lot. Once we're starting to not have as much power, market power or resource availability as we think we have, we get creative to stay ahead. And I believe that creativity will show up in the innovative ways the experts at the agencies will approach their work. I'd say again, the thing we all reacted to was the political state of judicial bodies. I do like optimistically hope that the negative effects will take longer to manifest within the positive effects more time to get ahead. Is maybe there's a final point here. - I love that. - Yeah, those are the things I'm hoping we see in a few years. - Yeah, I love that. Those are very, you know, I love that we have taken this, what seems to be dark and we've explored what could be light and good in the future. - Yes. - And it's something that we can revisit and we can sort of take these five points and evaluate. Like are we headed in the right direction or not? So thanks for sharing that, Shay. That's a really good way to kind of bring us to a, you know, a point of hope and a clear way of evaluating where we could be in the future. 'Cause we don't know how this is gonna play out, but this is a way for us to evaluate what could be. - Yes, yes. And I thank you for always making sure we, we don't just focus on the obvious. It's the nuances and the fact that for you, you were like, how does this impact communities tell me that? That is what I wanna know. And as much as we can respond with a clear-eyed view of what's going on and share that with our audience, I think we will continue to do that because of your spirit. So I'm pretty excited about where we will, when we look back on this and say, where did we get it wrong? Where are we missing the boat or, wow, this worked out as positively as we expected. - Yeah, I can't wait. I'm looking forward to that. - Yeah, it's taking fantastic. - Well, cool, Shay, this brings us to the last section of our podcast, which is Mailbag. One was a comment that a friend in the product community glanced at to the episode six Autonomous Cities, I posted that on LinkedIn. And he responded that cities are non-deterministic, which I think is a very short statement, but there's a lot in it, and I know that we're gonna do an episode that talk is about it, because I think what he was trying to say is that, AI is non-deterministic, and cities are non-deterministic. They're systems that are not rules-based. They have these nuances, they have these sort of knock-on effects, they have unintended consequences, they have ways of things are magnified and diminished. Just like AI, that's my day job, AI is non-deterministic and not rules-based, so you have to have a different approach to sort of building an AI product, something that I want to explore, thanks Glenn for sending that along, because it's spurred an idea for a future episode where we've tried to apply technology to cities, but we probably have tried in deterministic ways to do so. So, do we have better approaches to making cities thrived through AI, and we tried to touch on that in the autonomous cities episode, but maybe there's more there, and we can explore. Yeah, I think we should. I think we, and thanks again for the comment, Glenn, we have to exploit from that lens, so we have to do a subsequent episode, dive it into that, and we'll probably start to have some guests on to who are experts in some of these areas and can help us to move the conversation a little bit deeper, because as you all know our listeners, these topics are so expansive, we're trying to distill it into conversations that make sense and give us something that we can all wrap our arms around, really. But thank you Glenn for the great mailbag simple statement, fast in its implications there. Yeah, take a minute to share it with a friend who you think will enjoy it, make that connection, and keep the mailbags coming. We want your input, your feedback, your great ideas, we're not the experts, we're trying to learn with you, and we hope we all learn together. Thanks everyone, thanks Shane. Thank you, thanks Reza. All right, bye. (upbeat music) (upbeat music) (whimsical music)
