27 Apr 2023 - Graham
previously: pauls boutique
The gist of the book is: Ralph Nader and the public interest movement have undermined good government.
You might enjoy reading these notes if…
Along with Ronald Reagan, Ralph Nader is jointly, although not equally, responsible for the anti-government sentiment that dominates contemporary politics. Nader’s impassioned language set the tone of anti-government rhetoric.
Nader contributed to a neoliberal program of spreading competition everywhere.
The public interest movement that Nader founded undermines democracy in at least 4 ways:
In the late 1950, books by Nader (“Unsafe at Any Speed”), Jane Jacobs, and Rachel Carson criticized administrative agencies for bad decisions. Over the 1960s and 70s, Nader and the public interest movement helped break up the New Deal liberal coalition of big government, big business, and big labor.
Alienated citizens turned to non-profits for belonging and change-making. But these organizations were bad places to work, and exclusionary. They weren’t effective or powerful because they were designed based on a suspicion of power, and insisted on ideological purity.
Through the 1970s, public interest lawyers undermined the popular movements that had made their early successes possible.
Public interest organizations changed the rules of politics to favor themselves, small groups of experts. Court decisions and legislation of the late 1960s, empowered a litigation-centric strategy. This led to some early successes, like stopping highways and slowing down the Trans-Alaska Pipeline. But ultimately failed to work. For example, Post-watergate Congressional reforms did not improve Congress. Instead of improving the public’s access to government, public interest reforms have tended to empower private interests (like NIMBYs) and the conservative legal movement.
Since 1973, the public interest movement has achieved few positive successes. They have only been able to stop the bad.
Environmental legislation of the early 1970s (like the Clean Air and Water Acts), was designed to eliminate agency discretion. These limits now prevent the EPA from regulating climate change. Other public interest legislation (like NEPA and FOIA) focused on preventing bad projects (like dams) has also prevented good projects (like wind power).
The enduring failure of 1970s liberalism was not that liberals failed to blindly defend traditional New Deal institutions and political coalitions, but rather than liberals failed to adapt and respond effectively to their own substantive critique of the ways that the postwar administrative state threatened nature, community, and individual well-being.
Democrats still haven’t found a successful way to navigate their ambivalence towards government. When it comes to bureaucracy, the Democratic party is caught between faith and skepticism. Since Reagan, Republicans have had an easier time telling a simpler story: less government is better. Carter, Clinton, Obama, and Biden have tried, and failed, to convince the public of a more nuanced vision: that government is flawed but can be improved.
The public interest organizations that Ralph Nader started were designed to be an alternative to government.
Nader and the Environmentalists believed that government could only be fixed, controlled, and improved by non-governmental organizations
(This parallels Sam Moyn’s story about the human rights movement. Human rights activists don’t try to win elections. They’re experts who appeal to “universal” norms in an attempt to protect people from bad governments. For both public interest and human rights advocates, government is the enemy.)
Public interest advocates claim to protect democracy. But, in fact, they tend to undermine democracy in 4 ways:
Rather than merely influencing government, public interest advocates aim to control government. They want to govern from the outside. For example, the environmental laws of the early 1970s constrained administrative discretion. This was meant to limit the government of the future, in case the wrong people got elected. Put differently, they didn’t trust future voters. Since then, laws have become increasingly complex and micro-manage-y, with the aim of preventing future publics from changing their mind.
Prior to the 1970s, organizations tended to represent a discrete set of citizens and their interests.
Nader’s groups, in contrast, claimed to represent the interests of the entire public or, in the case of environmentalists, the world itself. This wasn’t really true. Public interest organizations are led by individuals with specific ideas about what the public needs. Nader’s groups represented the views of a narrow range of staff (mostly Ivy Educated lawyers) and donors (who tended to be rich and white).
Changes they made to lobbying laws, FOIA, standing doctrine, rights of action, and more, are more easily and successfully used by private interests. The public interest movement has tended to empower NIMBY property owners and the conservative legal movement.
Robert Putnam (cited by Sabin) and Theda Skocpol (not cited by Sabin) persuasively argue that professionalized advocacy non-profits boxed-out membership-based clubs. By taking attention, money, and time away from clubs, non-profits have help to erode social capital. By eroding social capital, they have tended to reduce trust in government, which in turn, undermines the efficacy of government.
New Deal theorists, like Galbraith emphasized countervailing power–the idea that just as markets produce excellence through competition, so should government. Conflict between businesses, labor, and government was meant to produce balance.
But time wore on, this competitive system tended to become less competitive. Instead of striving for excellence, the players in the game strove to protect themselves from competition.
I wonder if this is a general trend of competitive systems–competition is expensive/difficult, so in the long-run, we strive to minimize it?
In the late 1960s and 1970s, Ralph Nader’s public interest movement strove to reinvigorate the competition by introducing a new player: consumers. Nader and the Environmentalists’ tedious outrage reinforced the sense of a 0-sum competition between private and public interests. By claiming a monopoly on the public interest, advocates treated government as an arbiter of a fight, rather than an independent expert. And they undermined faith in government.
In the 1970s, after years of pressure from Nader on one side and industry on the other, one government administrator observed:
“We must be right, because everyone is mad at us.”
This strikes me as a rather unlikely truth. If everyone is mad at me, I assume that I’m wrong.
3 incomplete thoughts based on this story…
Systems based on competition don’t produce balance. Competition produces winners and losers.
Competition is expensive. It’s hard to constantly improve and outwork your competition. It’s easier to change the rules so you always win. Or to collude with your competitors to turn the competition into a collusion.
Our legal system depends on competition to produce truth. Vigorous advocacy by each side’s lawyers is supposed to reveal the actual truth to the neutral judge. But is this what actually happens?
A good lawyer twists and stretches and minimizes, and does everything they can short of actual lying. Two sides (or at least one side) attempting to obscure the truth doesn’t seem likely to reveal the truth. Lawyers are known as liars for a reason.
And our electoral system depends on competition to make decisions. Graeber and Wengrow call this “charismatic politics,” in which leaders are selected based on popular contests, like sport, war, or elections. This isn’t democracy. Democracy would be sortition–selection by lottery with everyone getting an equal chance to lead. And clearly, our system of charismatic/competitive politics doesn’t produce good leaders or good decisions.
Maybe consensus and compromise can produce better decisions.
One definition of neoliberalism is that it makes the market the only arbiter of good and evil.
Perhaps the reason this sucks is that markets are designed based on competition. Neoliberalism then, at root, is the use of competition to decide everything. Even the self becomes the object of competition–with the growth mindset and building your brand.
Competition may have its place, but constant competition is unpleasant.
Even in the market, collaborative contracts can be more efficient.
How could we open up more diverse ways of being?
Nader linked environmentalism, consumer rights, and automotive safety under the banner of a bodily rights revolution. Each was meant to protect the bodily integrity of Americans from harm.
Nader grew up in small-town Winstead, Connecticut. Winstead had a town-hall style government. And his family owned a restaurant. At Harvard Law, Nader became disdainful of the typical law student track. He wanted the law to be a tool for social change.
The New Deal liberal coalition was based on a triad: business, government, and unions were meant to support and limit each other.
John Kenneth Galbraith called this “countervailing power.” Just as competition between businesses produced stronger markets, and just as the Executive, Legislative, and Judicial branches provided checks and balances. Or, perhaps even more analogously, like the American legal system, in which truth is revealed through vigorous representation by opposing counsel.
But this model was limited.
For example, the Administrative Procedures Act (APA) was designed to give the regulated industry a say in the administrative process. The APA only recognized the economic interests of industry. Similarly, common law only recognized the standing of a party who was directly harmed.
By the 1960s, however, Galbraith himself recognized his theory was wrong. This competitive model hadn’t limited government. Instead, the process had tended to foster collusion between government, business, and labor. Businesses and labor used government regulation to stifle competition, and directed government funds for their private gain.
In addition to collusion, the New Deal model of government by experts also produced conflict. As agencies matured and developed deeper and more specific areas of expertise, government experts increasingly came into conflict with each other.
Rachel Carson’s Silent Spring was the outcome of a conflict between the Departments of Agriculture (who supported DDT) and Interior (who were concerned about broader impacts).
Carson wasn’t criticizing rule by experts. Instead, she was contesting expertise with her own expertise, and the help of other insider sources. She was an insider herself; literally, she lived in the DC suburbs.
Until the late 1950s, Americans assumed that “someone” was looking out for them. Successes like the TVA, boom times, and rapid advances in technology contributed to high degrees of trust in the government and experts.
The Tennessee Valley Authority is a prime example of the New Deal faith in big planning. The TVA was a massive, expert-led, reshaping of the land, with new technology, for the benefit of the masses.
Folks like Rachel Carson, as well as Jane Jacobs and Ralph Nader sought to wake-up Americans to a new civic duty – a personal responsibility to challenge the government.
Jacob’s Life and Death of the Great American City was written against Robert Moses’ vision of urban planning. The first line of the book is “This is an attack.” Jacobs revealed the deep harms that Moses’ grand projects were doing to the neighborhoods of New York.
Ralph Nader began to write “Unsafe At Any Speed” as a law student in the late 1950s. On the strength of the ideas in the book (and a botched industry smear campaign), Nader succeeded in advocating for the National Traffic and Motor Vehicle Safety Acts of 1966.
Following Dr. William Haddon, and his post-law-school-boss Daniel Patrick Moynihan, Nader framed automobile safety in terms of public health. He blamed manufacturers and regulators for failing to protect people from the real source of harm. Nader reframed “accidents” as 2 separate collisions. First, car-to-car (or car-to-object). Second, passenger-to-car. He emphasized the second collision as the cause of the harm.
Industry, of course, argued that we cant live in a harm free world. But was Nader’s point about eliminating risk? Maybe it was. Or more fairly, Nader correctly argued that government and industry were balancing the risks selfishly, leaving out any risks to the broader world.
Today, bicycle advocates struggle against Nader’s frame, which was limited to the cars themselves, using Nader’s methods. Cyclists emphasize how cars to violence to the outside world, the people and community around them. So the content differs, but the essential strategy is unchanged: reframing causes and emphasizing violence.
The book sold poorly, at first. But the automotive industry felt threatened, and they attempted to entrap Nader. When principled Nader refused to be compromised and the plan was revealed, there was public outrage and Nader became a mini-celebrity. The entrapment played right into Nader’s rhetoric that corporations were bad guys.
As a result of the book, Nader’s tireless advocacy, and reaction to the reaction, Congress passed the National Traffic and Motor Vehicle Safety Acts in 1966.
These acts included 2 major bureaucratic innovations (as noted by Harfst and Mashaw):
Nader achieved this legislative success single-handedly. Through hours of research and publicity, he regulated one of the most powerful industries in America.
This heroic, individual effort based on facts became the model for the public interest model.
Nader’s answer to the question “Who represents the public’s interest?” aka “Who regulates the regulator?” was “Me!”
(GPD’s answer: perhaps self-ref’d games can be superior. Like Frisbee. And I wish bike polo was self-ref’d.)
The postwar American faith in government crashed against the realities of how that government was working, and what it was doing to the American people and to the land itself.
By the 1960s, many Americans had lost their faith in big government projects.
Critics like Carson, Jacobs, and Nader highlighted dangerous projects like…
(Compare with: Tony Judt’s Ill Fares the Land. Judt argues that boomers took government for granted. They saw the expense of social programs but the benefits were invisible. Sabin, in contrast, argues that boomers lost faith in government because government was failing them.)
And, most crucially, the Civil Rights and Anti-War movements revealed deep flaws at the highest levels.
The Black Freedom struggle revealed evil within government, and not only in the Southern states, but also by the complicity of the Federal government. Vietnam, the Pentagon Papers (1971), and Watergate (1972) showed that back-to-back-to-back Presidents (Kennedy, Johnson, and Nixon) were liars. The FBI, a rarely successful FOIA request revealed, had even conducted secret campaigns against the civil rights and anti-war movements.
The number of nonprofits exploded in the 1970s. 36,000 orgs applied for non-profit status each year 1977- 1980; triple the rate 1967-1970.
Having lost their faith in government, business, and unions, (as well as clubs and religion) Americans looked for new, independent groups to join.
Unfortunately, most of these non-profits failed to become sources of community, and failed to make change.
The New Left’s founding manifesto was written in 1962 by Students for A Democratic Society in Port Huron, Michigan.
The Port Huron Statement called the status quo a “democracy without publics.” Americans had become alienated by massive corporate and government bureaucracies. This alienation prevented citizens from challenging bad policies.
Their solution: student activism and new forms of voluntary association. They imagined these groups would be organized around issues. And since the current institutions were both corrupted and corrupting–including government, unions, and the two-party system–they would need to be new groups.
Big Unions were, in fact, corrupt. And it didn’t seem to matter who was in charge, the institution itself was corrupting. Alinsky believed that power, wealth, and scale, inevitably corrupted.
Union leaders may have started as “have nots” but their new role made them into “haves.” Alinksy called them, “fat-bellied, fat headed, and cynical.” But he didn’t mean these insults personally. The inefficacy and corruption of union leaders wasn’t an individual moral failure, it was a situational failure.
For Alinsky, concentrated power is always misused.
Nader’s “theory of power” was that the only safe power was “insecure” power
For example, Nader was suspicious of the USSR. Despite it’s rhetoric of equality, it tended to produce bureaucratic injustice. State socialism just replaced one master with another. Nader was particularly skeptical of scale.
Nader called on the individuals to turn against their institutions.
He called out lawyers, in particular. Nader identified corporate lawyers as one of the worst influences on government. These lawyers claimed to be merely doing their job - advocating for their clients. Nader called their behavior “anti-social.”
In a prime example, Nader picketed the offices of Lloyd Cutler, a lobbyist for the pharmaceutical and automobile industries. Unlike Nader, Cutler was active in the civil rights movement. And Cutler felt unfairly attacked. He compared Nader to Sen. McCarthy, of the red scare – both, Cutler pointed out, believed they had a monopoly on truth.
Nader emphasized personal responsibility because it worked. His reports were often informed by whistleblowers and insider informants. And his criticisms of big law resonated with elite law students, particularly from Harvard and Yale, who either worked for Nader directly or started their own public interest law firms.
In this way, Nader built a movement of professional citizens, made up of educated, middle- and upper-class followers. Ironically, in their opposition to corporate power, the new non-profits quickly took on the corporate form: professional staffs, lawyer-lobbyists, etc..
In the summer of 1969, over 1000 people applied to work with Nader. He chose 95 researchers. Most were graduate students (law, medicine, engineering) undergraduates, or recent graduates. Of these 95 “Nader’s Raiders,” only 2 were black, and only 10 were women.
Public interest founders didn’t want to be part of any bureaucracy. Nader and his most committed followers thought corporate and government work was, at best, soul-crushing. They hoped public interest organizations would be creative, fast-moving, entrepreneurial, and self-actualizing.
This led to a serious lack of organization.
For example, jobs were seen as temporary training grounds. The first employee to get a raise at the Environmental Defense Fund was, as a condition of the raise, told to quit within 12 months, to make room for someone new.
The Public Interest Research Groups (PIRGs) started on campus in Minnesota and Oregon They were student-run organizations. They used campus activity fees to hire staff and mobilize students. They focused on state-level issues, like clean water, consumer protection, energy, and recycling. In the Summer of 1970, student workers complained about bad working conditions:
dictatorial treatment, poor supervision, lack of meaningful assignment
Nader, in response, blamed them for being lazy and inadequately committed. He said…
Some of them wanted… soft-ball teams… they wanted people to sit with them in the morning and say ‘How are you?’
To be fair, he did give folks significant freedom to investigate new issues. He truly wanted self-starters. But then he was also manic about detail and perfection.
With shoestring budgets, the new public interest workers were expected to work hard for little pay. Nader told one reporter that the ideal hours per week was 100. Again, to be fair, this was the standard Nader held himself to. He expected everyone to work exactly as hard as he did.
This style of workplace did inspire many folks. And nearly all of them were white men.
In the late 1960s, the Ford Foundation had provided much of the seed funding and direction to the public interest movement, including environmental organizations.
Around 1973, the Ford Foundation signaled that they could not provide long-term funding. The Foundations told the public interest firms that they needed to find “sustainable” sources of income.
The organizations that survived formed relationships with wealthy individuals, and used direct mail to solicit donations from large memberships.
Soliciting donations from members worked at first, but quickly suffered from diminishing returns.
NRDC and EDF even headquartered in Manhattan to be closer to finance. The reliance on rich individuals and regular donating members, meant that the public interest firms’ primary constituency was white, upper-class people.
As the public interest organizations grew, the chaos became increasingly untenable.
Eventually, staff and/or funders would demand more stability. At which point, Nader moved on. Once organizations became established, he left to start the next thing.
This constant movement allowed Nader to maintain his independence and purity. But it also left him somewhat marginalized: outside of the community of advocacy non-profits that he had helped create.
Nader used aggressive, emotional rhetoric to generate outrage and opposition to government mistakes. The previous generation of advocacy groups, like the League of Women Voters, used milder rhetoric because they saw government as a collaborators.
Nader’s literary style could be described as tedious outrage. His power came from information gathering and lawsuits. Which also tended to be dull. This resonated powerfully with a certain people (white, male, professionals) who flocked to his movement.
It alienated the rest.
And created a treadmill effect–with political speech becoming increasing radical and strident.
Nader values purity. But only critics can be pure. Governing is messy, it requires compromise. An insistence on purity has prevented the public interest movement from achieving its goals.
Since 1973, the public interest movement has achieved few positive successes. They have only been able to stop the bad.
Nader and the public interest movement failed to move beyond criticism.
They intentionally avoided power because they were so suspicious of it. The public interest movement was made up of many, small, fractured, competitive organizations, by design.
They failed to build institutional power because they disdained institutions, including government, political parties, unions, and corporations. When they had a chance to govern, during the Carter administration, they failed to offer constructive solutions.
Nader had no sympathy for former allies who joined the Carter Administration. Joan Claybrook had headed Nader’s Congress Watch initiative. Before that, she’d resigned from the Nixon administration. Claybrook was one of Nader’s closest allies, often staying up with him late into the night working together. Carter appointed her to lead the National Highway and Transportation Safety Administration (NHTSA). In 1977, Nader wrote a public letter denouncing Claybrook. He wrote it because she had delayed the airbag mandate by 2 years. His letter was an attack, it was harsh and personal. Calling it a “failure of nerve” and talking about “a trail of broken promises.”
Claybrook took the high road. She said “He had to scold.” And like other former Nader Raiders in the Carter Administration, she recognized that outside advocates had to take a hard line. This reflected a new view of administrative agencies, not as fact-finders and independent experts (as they had been treated by the New Deal), but as mediators in a 0-sum conflict between different interests.
Nader’s hyper-critical stance didn’t help shift the Overton window, it merely undermined public support for his allies.
Nader should have been at the height of his influence in 1977. He had a friendly president who had appointed close personal associates to decision making positions. And yet he was losing.
The public interest movement struggled during the Carter administration because they were structured to oppose government.
In contrast, under Reagan, public interest organizations thrived. Membership and fundraising surged. The Sierra Club grew by 30% in the early 1980s. Audubon saw 10x donations when asked for money while attacking Reagan.
In Nader’s eyes, there was no difference between the two parties.
Perhaps this was because Carter had personally failed him. Carter had promised and failed to establish a Consumer Protection Agency. Carter had also opened public land for development, raised oil prices, and supported nuclear power.
Nader wondered if Reagan could be worse. He even hoped that Reagan winning would reenergize his movement. He undermined the Carter reelection campaign – giving damning compliments like “he’s the least of the worst.” And while he didn’t cause the loss–Reagan won for many reasons–he didn’t help.
Similar reasoning motivated his run against Gore and Bush. He campaigned heavily on that point, the lack of difference between the two parties, in 2000. Former Nader Raiders urged him to quit, but he refused saying that a Republican antagonist would be better than a Democratic anesthetic. He won 97,000 votes in Florida, far more than the margin of Bush’s win. He became instantly infamous, but still maintains that he was right. He claimed “Gore beat Gore,” meaning that Democratic party lost because their moderate agenda failed to inspire voters.
Public interest law firms, like Natural Resources Defense Council, Environmental Defense Fund (initially part of Audubon), Center for Law and Social Policy, Center for Study of Responsive Law, Earthjustice, and others…, were nearly all started by Yale Law School students who had been inspired by the 1960s. NRDC even called itself a NAACP for the environment.
The Black Freedom movement and anti-Vietnam war protests created the window of opportunity for these public interest lawyers.
Nader himself didn’t participate in the civil rights or anti-war movements. But he did seize the opportunity they created. In 2018, Nader himself acknowledged that it was the people in the street who had made it possible for him to get legislative hearings in the late 1960s.
These white men with “glittering resumes,” offered a moderate alternative to the more disruptive protests in the street. For all their bluster about being anti-establishment, the public interest organizations were staffed by familiar people–white, Ivy-educated, male–using familiar tools–law, science, the press.
We worked within the system, instead of changing it.
An insider approach appealed to funders, particularly the Ford Foundation. Ford, and other foundations, set the direction of the public interest movement. They insisted on the insider strategy, even requiring the idealistic young Yale Law graduates to work with more experienced establishment lawyers.
And the limits on these funders, particularly IRS rules, also set the limits of the movement. In 1970, the IRS clarified (over Nixon’s objections) how foundations could support environmental litigation. This rule then defined the environmental movement’s range of action.
The litigation strategy also appealed to the public. It relieved them of the responsibility to act. Instead of having to do anything, the experts and lawyers could take care of the public interest, while they sat back and watched it happen on TV or, maybe, wrote a check.
The initial successes of public interest litigation redirected money, people, and attention away from movement-building efforts. As these public interest firms took resources away from movement-building, they steadily shrank their own base of power.
And the insider strategy took the fight to industry lobbyists on the industry lobbyists’ ground – lobbying and litigation. It also inspired a conservative backlash that has, arguably, been far more effective.
Since the mid-1970s, the environmental movement has failed to pass significant legislation.
Litigation has been able to stop bad government, but it hasn’t been able to create good government.
Public interest organizations changed the rules of politics in 4 key ways:
For example, public interest lobbying started because of the Trans-Alaska Pipeline. In 1973, after years of delay, the Senate voted 49 to 49 to set aside NEPA challenges to the Pipeline. Vice President Spiro Agnew broke the tie in favor of the Pipeline. In the post-mortem, environmental groups believed they could have won if they had been able to lobby. They then successfully lobbied for the right to lobby.
Changes like this were designed to play to the strengths of Nader and the public interest movement. They empowered small groups of dedicated people, particularly lawyers.
Unfortunately, rather than serving the public interest, this has tended to empower private interests. The folks most likely to form a small, dedicated group are people with a private interest, like NIMBYs and businesses.
And the courts inspired a powerful backlash: the conservative legal movement.
The conservative legal movement reshaped the judiciary and used the same tactics of lawsuits and delay and defeat the public interest movement. They used the same tactics. But they had more funding. And they got more judges appointed.
As one reformer later put it:
we destroyed the institution by turning the lights on
Rather than having many semi-independent sources of power (like committee chairs), central leaders set the agenda for the entire party. This also contributed to ideological consistency.
This made politics less transactional and more ideological. Instead of trading favors, politics became about being on the winning team.
Limits of campaign donations didn’t get money out of politics. Instead it shifted the money to corporate political action committees. This tended to empower lobbyists and wealthy donors, who controlled the PACs.
During the New Deal, the Judicial Branch had been the enemy of the left. The Supreme Court repeatedly struck down early legislation by FDR. For the left, administrative agencies in the Executive Branch were seen as the solution.
In the 1960s and 1970s, the script flipped. Agencies had become corrupt and reactionary. So advocates turned to the courts.
Litigation let advocates punch above their weight (at first) Litigation was seductive. With litigation, a tiny team of lawyers and scientists could change the decisions of massive federal agencies.
In order to get into court, however, public interest law firms needed two changes.
A civil rights case, United Church of Christ vs Federal Communications Commission (1966), gave public interest law firms access to the courts to challenge agency decisions.
The case was about a Mississippi broadcaster who aired discriminatory coverage of civil rights protests. Yet the FCC renewed their license.
Justice Berger wrote the court’s opinion. Berger argued that consumer input would improve FCC decision making. With this holding, Berger opened the door for citizen suits challenging the wisdom of agency decisions.
The founders of the Center for Law and Social Policy (CLASP) cited this case in their initial application to the Ford Foundation. They pointed out that sharecroppers didn’t know how to “play this game.” (It seems telling that they called it “a game”).
As the US became more wealthy, its focus could shift from economic output and growth towards other issues of quality of life.
Supreme Court Justice William O. Douglas pioneered this inclusion of conservation as a relevant interest.
In Scenic Hudson Preservation Conference v. Federal Power Commission, the 2nd Circuit stopped a novel energy storage system (pumping water uphill) that would have harmed fishing and the views near Storm King, along the Hudson.
This decision basically founded the Natural Resources Defense Council (NRDC). And it set the tone for the environmental movement – they would find most of their successes as NIMBYs, stopping projects that threatened scenic views.
Early environmental litigation achieved some of it’s first successes stopping highway projects.
Like stopping the expansion of HWY 40 through Memphis.
Highways had typically been planned by Transportation agencies, in close collaboration with auto clubs, construction firms, oil companies, and car manufacturers. And highways had dedicated funding from the Federal Highway Trust Fund. This insulated highway funding from budgeting discussions and oversight.
In the 1970s, public interest advocates were able to use NEPA and lawsuits to reduce the rate of highway construction through cities.
Because environmentalists distrusted government agencies, the environmental laws of the early 1970s (like the Clean Air Act, and Clean Water Act) were written to constrain agency discretion, with specific mandates and timelines. This “command-and-control” legislation constrained both government and industry. The lack of flexibility led to immediate push-back. And, today, the same limits prevent the EPA from regulating climate change.
Similarly, the other key pieces of public interest legislation (like NEPA and FOIA) were focused on preventing bad projects (like dams) but have also prevented good projects (like wind power).
Before, the EPA could do little more than coordinate with State regulators and ask for voluntary compliance. But the Clean Air Act didn’t empower the EPA as much the other branches: Congressionally mandated deadlines, plus citizen suits and judicial review. It was “command-and-control” legislation in the sense of controlling both the industry and the agency.
Costly mandates and inflexibility generated immediate and loud opposition from industry. These bossy laws were an easy target for backlash.
The Clean Air and Clean Water Acts were the first pieces of legislation in which Congress told an Agency what to do, when to do it, and how to do it. It reflected a major shift from the New Deal, and even Great Society, approach to government. This kind of legislative micromanagement has now become the norm.
Since the late 1960s, government has been caught between two sides.
Neither of these approaches helps government learn and improve.
Carter, and Nader, attempted to find a 3rd way. They failed.
And since them, the left consistently failed, in the same way. The left doesn’t have a compelling vision for government.
The right, in contrast, has a simple and powerful vision: government is bad, tear it down. This story has, so far, been winning.
Carter, Clinton, Obama, and Biden have each tried (and failed) to articulate a vision of efficient government. In contrast to Nader who remained pure, they aimed for a moderate path. But the compromises they aimed for have tended to make everyone mad.
For an example of the contradictions that failed to win popular support, Carter signed the Superfund law and Paperwork Reduction Act, on the same day.
Carter’s other “reforms” included:
In general, Carter attempted to shift government policy towards market-based solutions, like incentives.
Carters’ attempts to create more flexibility in government ran counter to the public interest movement’s desire to control the behavior of federal agencies, particularly EPA and OSHA.
Carter fumbled, in particular, on energy policy.
He opposed dams, which he saw as both wasteful spending and harmful to the environment. But he failed to consult with Western legislators, and in his opposition, made an enemy out of many members of Congress. Then, after poisoning these relationships, he backed down. He traded his support for 9 dams in exchange for Congress withdrawing funding from a Nuclear plant in Tennessee.
Initially, Carter was committed to “soft energy,” like solar. Then, when energy prices started to rise, Carter waffled. He proposed millions of dollars to subsidize the development of synthetic fuels (like ethanol). And he promoted nuclear energy, even after the 3 Mile Island disaster. This made enemies of the environmentalists and the energy industry.
Clinton tried much of the same strategy.
Clinton was at Yale Law in the 1970s, when it was a hotbed of the public interest movement. His classmates started NRDC and CLASP. Informed by these efforts, Clinton tried to make government more responsive to citizens as consumers. Clinton only got halfway. He succeeded in transforming active citizens into passive consumers. But after the 1994 midterm republican sweep, he was put on the defensive, unable to achieve positive goals.
Clinton’s “triangulation” was meant to find common ground between right and left. Triangulation made everyone angry. By triangulating, Clinton put himself where he had no support.
next post: spring update 2023