The failures and limits of power...
A very quick and brief reflection on the failures and limits of power...
I listened to a story on NPR coming into work, this morning, that I thought well illustrated the failures and limits of power and firm assertions of authority to solve problems that need collaboration...
The story (which I'm not finding on their webpage, this morning) detailed the power battle between a local Native tribe along the Canadian border and a Canadian corporation that does business north of the border and has likely polluted waters that have run downstream...
The Canadian company says that it wants to work in good faith to clean up the waters after they've studied the issue and has evaluated the risk involved...the tribe wants the EPA to assert authority over the Canadian company and force them to clean up the waters...
The problem is...the EPA doesn't likely have jurisdiction over the Canadian company...even as a Federal court and a Federal Appeals Court assert that they do...assert all you want, the Canadian company seems to have been saying to the tribe and to the courts...there is no jurisdiction...the pollution happens north of the border and the last time they and I looked, that was Canadian territory, not U.S. territory...
The company appears to be in good faith...and no assertions of authority have led to any clean-up...the EPA is doing the sensible thing, right now, which is negotiating and working with the company, where active collaboration will likely yield a far better result than any assertion of authority...
But the tribe just can't get off of it...
No matter how much their strategy has failed...
Jurisdictions are created to limit authority for just this reason, actually...because of the avarice of those who wield authority...
It's kind of funny to me just how so many people enamoured with the law and with power and authority seem to never respect its limits...once they have it, they want to wield it wherever they think they should get their way...
Lord Acton had a phrase for that kind of thing...
Power corrupts...and absolute power corrupts absolutely...
And the whole purpose of democratic authority and governance was to set limits on those who would wield it...
You wouldn't know that from democratic practice over the last 6 years, at least, or so...because everyone seems to think that democracy is a tool for their power-hunger more than principles to limit it...the Nazis thought that too and the Weimar democracy became their tool without a more mature idea of what democracy constitutes...
Thank God for democracy is my thinking over these last 6 miserable years...thank God that there are checks and balances in place for all parties to be accountable to...not because they resolve problems...they don't...but because they limit the ability of those who would wield authority to do so without limits and to persistently ignore how and when they don't solve problems...
It's amazing to me how many people seek out power and authority and ignore and refuse to take responsibility for its use and for its failures...ironic, because the whole point of authority to is promote responsible action...
All too human...and the most important reason to take democratic principles seriously, and not just as sidelines to our big ambitions...
I have work to do:):)...have a great week, everyone:):)...
Love,
Ben
7 comments:
I listened the same story on NPR and had a very different reaction...
You have these people who don't know whether or not they can eat the fish from their own sovereign land because of the heavy metals and residues flowing south from Canada.
You have the EPA telling the Canadian company to knock it off, but refusing to then take even a tiny step toward enforcement.
The "good faith" of both the EPA and the Canadian smelter are questionable to me. It's not like the company (whose name started with a "T" but now escapes me) doesn't know that their activities are sending crap downstream. Studying the dangers of said crap is fine and dandy, but how about knocking it off until you get the study done instead of continuing, hoping that it's no big deal. It's a weird mutation of presumption, in my eyes.
Okay, then the EPA... They want to negotiate a deal. That's their explanation for why they didn't try to enforce their own order. That could be true. It could also be that they didn't really think they had a snowball's chance in hell of getting the job done and that they issued the original order to appease the cranky tribe members. It could be a lot of things, really. They could even be telling the truth. The long stuttering answer to the "did you ever try to enforce your notice to Company T," though, left me feeling less than excited about how serious the EPA takes the matter and we all know that "negotiations" can be a code word for doing nothing.
Meanwhile, this tribe was able to drag Company T into a federal district court and win the case.
Now, I can appreciate your perspective about wielding legal authority and the limitations of that technique. However, a U.S. Court gave them the win, and you can bet all of the floating metal shavings in the Columbia River that the Canadian Co. argued the holy bejeezus about jurisdiction.
Really, neither of us are probably well-situated to say a great deal about this. I haven't read the decision, looked at the precedential case law cited therein, or read any code upon which the claims were based. I also don't know a ton about international conventions and expectations regarding trans-national pollutants.
However, I am not ready to say that this is a misuse of legal power on the part of the tribe.
I came away from the story rooting for them. It seems to me that if my neighbor starts collecting dog shit in his front lawn and some of said feces tend to bleed over into my yard every time it rains, he's responsible. Yeah, the crap is on his side of the property line where he may claim dominion, but once it starts to leak over to my Kentucky bluegrass, he's responsible. I don't care if my lawn is in the U.S. and his in Canada. My guess is that the law with respect to pollution, etc., feels likewise.
Again, I'd have to read it all to find out.
So, maybe I just don't trust the EPA enough. Maybe I feel sorry for the native Americans up there who can't eat their trout without worrying about shitting lead. I don't know.
I see the tribe taking matters into their own hands and exercising the power they have within the legal system to be a perfectly legitimate use of power. Moreso, perhaps than trying to rely upon governmental agencies to handle enforcement and problem solvency for them.
Neat how two people who usually agree w/ one another can see it so differently.
CDB
Carson,
I totally agree with the fact that this is the responsibility of this company and any company that has been involved in contaminating these waters, of course...and I applaud constructive efforts to prompt some responsibility...I do think they need and are wise to be accountable to what is works and what doesn't, of course (just because it seems kind of foolish not to)...
I do think that the jurisdictional issues matter, though...meaning, there are all kinds of ways that we can look at situations and say, "Goddamnit, why don't they fix that" and then just assert whatever jurisdiction we please to make that be...
But the whole point of jurisdiction is to put limits on our capacity to do that, as a check on our ability to use power willy-nilly just when we think we have asserted to right to, sufficiently enough...without the idea of jurisdiction, there is no limits on power...and living without limits on power is the all-too-tragic norm of human existence...it was the norm for which democracy was created to correct...
This is an example of people trying to follow that norm for purposes that I understand and agree with, but I do think that the jurisdictional issues matter --meaning, it's bad precedent I wholly agreed with the arguments in the story that just letting anyone assert authority to deal legally with any problem they see fit, independent of jurisdiction and the political decisions and legal framework that offer any kind of legitimacy to that authority erodes its credibility and legitimacy and becomes fodder for abusing jurisdiction, as I think this case is, even as I sympathize with the tribe and would act to intervene in more constructive, collaborative ways to resolve the issue were I in a better position to do that...
The most serious abuses of power in the 20th century, nevertheless in previous centuries, have occurred because people saw a problem and decided that whatever authority/force they needed to assert over that problem, they would do so...and the insanity of it is that no matter how much such efforts would fail, the authority, itself, became the rallying point...
I obviously want that water cleaned up...and definitely agree that the company should cease and desist in polluting them further, obviously (though they are not showing any signs of cooperating, just because a foreign court -- the U.S. Appeals Court -- says so...I imagine American companies would react similarly to courts in Canada or Mexico, say...and I want the most constructive means of getting there...but I also think that if democracy is going to mean something beyond just another way for us to get the things we want, then it needs to involve limitations on power...
I suppose we can ignore those limitations...but I think that what we ignore when we do so is so much more fundamental than any particular outcome, that I think we do so at our own peril...
Maybe limits on power don't matter...maybe the only thing that matters is getting to the good outcome, regardless of means...but the history is replete with tragedy from that reasoning...and I just think it's time to put it behind us...
Ben
Well, that makes a lot of sense, really.
Here's the Billion Dollar Question, I suppose... Does this represent some sort of jurisdictional over-reach.
The answer to that question does have a legal component that I'd have to research to finalize my opinion.
I don't know what kind of agreements the U.S. and Canada have, or what other legal remedies might exist in a case of trans-national pollution like this.
You're right re: the potential willingness of our court to claim jurisdiction where it doesn't belong, but without reading the decision or the law, I am going to put more temporary trust in the court than in the EPA, I guess.
Maybe I should actually do some research and reach a supported conclusion, huh?
CDB
There is definitely relevant legal precedent and law that needs to be consulted, Carson, for the question of is this the best interpretation of the laws involved...and your pointing to transnational agreements is completely relevant to that question, obviously...
But the first problem I have is legal...which is that the Federal Appeals Court, or any court, really, can have an opinion about the matter...but the jurisdictional issues would have be settled with the Canadians before that opinion could ever be binding...meaning, if a relevant Canadian court of appropriate jurisdiction agrees, or if there is some other third party -- the WTO or some other binding international body -- then the decision becomes binding...
But until the jurisdictional issues are resolved, it just becomes an opinion by a foreign court for the Canadian company polluting in Canadian waters...
So the court can rule as it wishes, but I can't think of why their decision would be binding on a Canadian company engaging in activity in Canada without a clear resolution of jurisdiction with relevant Canadian authorities...
International legal issues are just not unilateral in their nature...the nature of jurisdiction is that it is divided...there's no real way around that absent either cooperation between authorities, outside international bodies, or cooperation from the parties involved, that I can see...
But there is another level to this that I think is wholly relevant...which is...
A) Legal decisions, generally, are political first, in my experience, and legal second...meaning judges, as the rule more than as the exception, in my experience, rule as they see fit, first, and find legal arguments to support that fit, second...
So the political ramifications become wholly relevant to this...
Meaning, in all likelihood, the Federal Appeals Court and the lower Federal court believe that this decision will clean up the waters...but there is very good reasons to believe that it won't...and that it might be (and already has become, I think) counterproductive to that purpose...which I believe should inform legal decisions, I'm just more open and explicit about that than many judges are...
School desegregation orders in the 80's and 90's were excellent examples of court decisions that I think were often ineffective and/or counterproductive to their purposes and it would have seemed wholly relevant to me for a judge to dismiss cases on the bases that minimal requirements had been met and seek extralegal means of dealing with the issues involved, especially if the use of the court is the problem...
Meaning, if courts are unwilling to make decisions that humble their notions of their ability to achieve outcomes that decisions are designed to achieve when and if they may be ineffective and counterproductive, then they should get used to failure to achieve those objectives as a consequence of that, when legal decisions are counterproductive, and if they don't prepare themselves to move out of the way, then they should prepare for protacted and long-standing cases with little to no resolution...
Like school desegration decisions, which is why I mention this example...
Federal Court judge Richard Posner makes brilliant arguments, I think, Carson, about the need to assess economic consequences from legal decisions, but I think the same reasoning coule be applied to extra-economic consequences from legal decisions (Ronald Coase is a brilliant economist to refer to for extra-economic consequences from economic decisions, if you get a chance, Carson...internalizing externalities, like pollution...a concept that has much more promise in situations like this one that the legal wrangling)...
Meaning, there is nothing wrong at all, I don't think, and is done all the time, I just think it would be more honest to do it more openly, to consider the consequences of legal decisions rather than just applying law blindly...
And I'm not even sure what the EPA can do in this case, Carson...
I guess they or a governing body in the U.S. could sanction the company for business they do in the U.S., but it would have to be specially developed for this company rather than law, I imagine, since the company is neither formally from the U.S. and its activities don't originate in the U.S...
Now...having said all that...
I obviously think the company should do the responsible thing and clean up their mess and stop dumping in these waters...
And given the success of the Clinton Adminisration and Bruce Babbit's Interior Department in bringing environmentally concerned groups and business groups together -- specifically to resolve long-standing longing conflicts in the Pacific Northwest -- to resolve differences and generate more collaborative approaches to environmental concerns...
And the absolute miserable failure of environmental groups to compel environmental action during the Bush years (not only does Kyoto fail to get U.S. ratification, Carson, but European countries have missed their targets in big ways that really kind of render the deal useless, just at a pragmatic level)...there has been some bipartisan legislation (around emissions, perhaps?...my friend Wendy would know much more about this since she's been lobbying on it and has been a big Bush defender, as a liberal, for supporting it), but the most exciting activity during this period, to my mind, Carson, has been in the market...
Flex-fuels, hybrids, ethanol and alternative energies (though this last bunch is mixed with plenty of government subsidy and possibly other legislation...though the current period has demonstrated, to me, at least, that without a market to support alternative energies, government subsidies are fairly worthless)...recycling has become more popular, by my lights, and is, generally, a completely voluntary activity...
There is plenty of resistance amonst traditional business types to this kind of environmental activism and their assessment of how it impacts the bottom line (Milton Friedman says in The Corporation that businesses should not be engaged in social activism and that such activities are the domain of the government, but he simultaneously opposes most government intervention, which just makes no sense at all, and tries to hide market decisions in a vaccuum that they do not live in)...
But that resistance is being overcome, generally...but not generally with legislation, I don't think...it is largely being overcome because people are supporting business decisions that support the environment in the market...and the market, not government, is, ultimately, what business listens to...
Meaning...environmental decisions are not just blocked by the irresponsibility of businesses...they are also blocked by the irresponsibility of investors and consumers, who often won't and don't support environmental decisions in the market, which is what makes businesses so skittish about making wiser evironmental deicisions that might cost something on their bottom-line...
It's like the organics that I buy...the more we support businesses that operate more environmentally sound, the more they can support the environment without having to be afraid of the financial consequences...
The less we support them, financially as much as moral support, the less they will make wiser decisions...
And legislation just can't replace that dynamic, I don't think...because, when it comes down to it...businesses, like many people, care more about the market and how people are responding than they do about the law, as a general rule, I think...
There is experience from the Clinton Administration for us to believe that collaborative relationships with businesses would be more effective -- do you remember how long those logging disputes went on during the 80's and 90's, Carson? And much resolution that we've got around those issues -- remember the spotted owl? -- occurred with more collaborative relationships built by the Clinton Administration...
The last six years has not had any serious environmental success that I can name, Carson, but maybe that's because I wasn't paying enough attention...
And I don't just blame the Bush Administration for that...I think environmental groups have been strong-arming and failing to work with the Administration and with businesses in better faith...and they have reaped what they have sown...
I wish the harvest were better...it just hasn't been, to my mind...
I'm a committed environmentalist...I recycle much and often...I eat organic, as much as possible...I am definitely one of the more environmentally conscious and responsible of my friends, by far...
But I just think the route of the last 6 years has failed one...and I highly doubt that Democratic power without a more collaborative attitude and leadership from someone like Bill Clinton or Bruce Babbit will ever be able to replicate the very clear results from that Administration, I don't think...
I'm open to being wrong about that...but I seriously doubt that they will get those results without that kind of collaborative, participatory, active responsibility-taking kind of leadership...
Law compels, but often produces resistance...
Conscience ultimately guides...although I admit we should expect limited results from businesses who often put their bottom-line before their consciences...but consumers and investors with environmental consciences can support efforts that business leaders initiate in the market...
I think the former describes the situation in that NPR story...but the latter can be a place to start to initiate a more meaningful resolution, I think...
Ben
Carson,
I was just re-reading my comments, here, and thinking that I don't want to give the impression that I am more dogmatic that I might be giving the impression of, here. This idea would turn the notion of, say, the Clean Water Act or the Clean Air Act on its head. And I want clean water and clean air like anyone else, and I appreciate any and all contributions that these acts make to that end.
The more I watch the long-run on the politics, though, the more I become convinced that the legal wrangling just prolongs the process without a more collaborative approach.
But that doesn't mean that I'm looking to go overturn the Clean Water Act or the Clean Air Act. It just means that I think that, as we develop future policy, we should be more attentive to how the use of force and legal and political wrangling may actually undermine our efforts and take more seriously alternative policy options that might better promote collaboration around the goals involved, especially when the goals involve complicated issues and sustained relationships to accomplish long-term goals.
The problem is how we approach the issue as people, I think, more than the laws themselves. As people, we can make choices about how we approach laws and policy. Those are codified, obviously. But codification is never the last word in law or policy. I think that's a good thing, generally. I think that's also the only realistic option since the one common fact about most people is that they do what they damn well please if its important enough to them.
At this point in my life and to the best of my ability, Carson, I work with relevant laws and policy, as a general rule, though I have experienced enough problems with pressure and strong-arming around No Child Left Behind -- the most pressing law in education work, today -- to know that it is counterproductive, because I watch it be counterproductive every day (I just blogged on it today).
If I were this company, I would clean up the fuckin' river and stop dragging my feet on the issue. And I wouldn't give two shits about my profit margin as long as I was still able to pay my bills, my employees, and make a marginal enough profit to satisfy investors to keep them interested. If I were CEO, the mess would get cleaned up because we made it and not because someone compelled me to do it, unless, of course, there were political factors within the company and between the company and investors and any other political limitations I might face in getting the issue resolved that, for whatever reasons, I couldn't get resolved, at that moment.
But I do wonder, in this situation, if this tribe may have taken a less than ideal situation -- a company that hadn't cleaned up pollution they created because it was downstream in another country -- and made it worse by trying to twist their arms and creating resentment around the whole issue.
I want the matter resolved, as well. But I do have serious suspicions just watching so many situations like this fail, right now, that perhaps it is the power-wrangling that creates the resistance rather than something that can just be blamed on the negligent party.
But my suspicion is that these kinds of issues only get resolved when the parties involved get committed to resolving them and no earlier, binding law or not.
Ben
"I guess they or a governing body in the U.S. could sanction the company for business they do in the U.S., but it would have to be specially developed for this company rather than law, I imagine, since the company is neither formally from the U.S. and its activities don't originate in the U.S..."
This is not a fair representation for the case for legal resolution of this issue, I don't think. Congress could write law that decides how sanctions could be applied to foreign companies doing business in the U.S. It would take some time and it would be ex-post facto, if it's not already codified, so that legal research is wholly relevant, her.
Though the Canadian company can still ignore the sanctions, eat them, do business elsewhere or a million different options that just doing the right thing and cleaning up the water.
I don't know what's going to happen. But I do know that these kinds of things have a way of working themselves out once people get committed to working it out and not fighting endlessly. But that means that people just come back to the same drawing board when they were faced with the option of legal wrangling or working out a solution collaboratively. Except now with bad blood. That's why it makes more sense to me to just work it out collaboratively in the first place.
But, at some level, people just need to get over themselves and clean up the fuckin' river, I think.
You know, though, Carson. The more I think about my own inability and foot dragging to pay bills that need to get paid, I wonder if I wouldn't drag my feet in this situation, too. I would hope not. But I definitely know from that situation how, when someone decides that they are going to get their way with you, whether you like it or not, how it tends to produce resistance to doing anything about it.
Ben
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