On this episode of Free Range, host Mike Livermore is joined by Lee Fennell, a law professor at the University of Chicago and author of Slices and Lumps: Division and Aggregation in Law and Life,.

The conversation begins with a discussion of the role of aggregation in law. Fennell explains that in many other contexts, resources only provide value when they are combined into usable chunks. Property law can be understood as balancing two competing concerns – facilitating the aggregation of recourses to create value (on the one hand), and avoid too much aggregation, which can create opportunities for free-riding (0:36-18:13).

Fennell explains how property law helps individuals and groups create stream of benefits. Property law is distinctive, in part, because it involves the concept of ownership. But property's traditional model of ownership doesn't always fit modern needs to solve new collective action problems. Ideally, property owners have some power over their property – and confidence that their rights will remain stable, while also not being able to impede how things are put together for the greater good. Stability is important for property owners, but the world is dynamic. Culturally, there's a conflict between the idea that property ownership involves absolute control and the reality that it's constrained by regulations and external factors. A major challenge for the future is to redefined concept of property in a way that's more adaptable but still aligns with people's expectations of stability. One solution could involve allowing ownership interests over certain benefits (like housing) but not fixed to a specific physical footprint (like a particular house), providing flexibility while maintaining stability (18:14- 37:35).

Fennell is interested in how private and entrepreneurial efforts can work alongside existing property concepts to find ways to address challenges. This includes utilizing law to facilitate voluntary transactions and dynamic property management. However, Livermore points out that government coercion is inherent to property law. Fennell describes the challenge as transitioning from traditional property expectations to more flexible models that encourage voluntary interactions and entrepreneurial solutions, adapting property arrangements to address today's urban and environmental challenges.

In reimagining property systems, two major changes could be considered: first, making property ownership less permanent and allowing for adjustments; second, moving away from fixed geographic locations and making property rights more dynamic. This could involve creating options for property ownership that can be called back or reconfigured under certain conditions and enabling more flexibility and collaboration among owners for potential redevelopment. Another approach might involve concentrating property under a single owner who can then rearrange holdings, but this approach comes with its own challenges of concentration and scale. These ideas aim to introduce more adaptability and responsiveness to property systems while still maintaining individual ownership. Lastly, addressing inequality through property involves considering how services are created and distributed, as political decisions and public goods shape property's value and impact; illuminating these dynamics can help reveal alternative ways to configure property for a more equitable outcome (37:36- 1:02:27).

On this episode of Free Range Podcast, host Mike Livermore is joined by Sabeel Rahman, a professor at Cornell Law School with substantial public policy experience, including as president of the think tank Demos and as senior counselor and then later as the acting Administrator in the Office of Information and Regulatory Affairs in the Biden administration. Rahman is also the author of the book “Democracy Against Domination” amongst other works.

Livermore and Rahman begin by placing his book within recent historical context, from the 2008 financial crisis that renewed attention to economic inequality, to the 2016 presidential campaign of Donald Trump, which substantially emphasized attacks on the regulatory estate. For Rahman, he argues that the technocratic, managerial approach to governance that was promoted by many liberals in the aftermath of the 2008 financial crisis lack the moral resources to truly respond to the political moment, creating an opportunity for Donald Trump to propose an alternative. Rahman also discusses his view that the challenge of the modern economy is not income inequality, but rather that problem of power and domination. (0:48-10:51)

In his book, Rahman is also interested in emphasizing historical ideas that have lost currency, including by thinkers such as Louis Brandeis and John Dewey, that focused on how to construct a democratic system in light of economic power. These ideas have been picked up by modern scholars and policy makers such as Lina Khan and Jed Purdy. The book also discusses how norms of democratic governance interact with the administrative state. (10:51-23:40) The conversation turns to questions related to expertise, the role of interest group bargaining in the administrative process, and the potential for broader participation. (23:40-36.49) They discuss participatory mechanisms such as citizen assemblies, lottocracy, and existing cooperative federalist approaches. (36.49-40:10)

The final segment of the podcast focuses on Rahman’s time at Demos and in the Biden administration. (40:10-1:07) Rahman discusses the role of the civil service in a robust democracy, the need for civil society, and some steps that the Biden administration has taken to facilitate community participation in federal decision making. The conversation ends with a discussion of the complex interplay between deliberation, participation, and the necessary exercise of political power in the real world.

On this episode of Free Range, host Mike Livermore is joined by Holly Doremus, a professor of environmental law at Berkeley and the co-director for the Berkeley Institute for Parks, People, and Diversity. Doremus has a interdisciplinary background with a PhD in Plant Physiology from Cornell in addition to her JD. For Doremus, one of the benefits of an interdisciplinary educational experience is that it has helped her to

better understand what questions different disciplines are able to address and what questions they may not have thought to ask.

In our approach to answering conservation questions, we need to reevaluate what our goals are in order to decide how to achieve them. At the start of the Endangered Species Act in 1973, crucial questions, including fundamental questions concerning the nature of a species, and our risk tolerance and willingness to commit social resources to conservation, were either not understood or were seen as better addressed later. A further contemporary challenge is that the ESA was not framed to protect the proportion of species that are at risk today.

One consequence of the Anthropocene is an increasingly number of species under protection, which means greater limits on individual and commercial activity. Doremus believes that congressional intervention will become more common as the number of ESA controversies increases (6:44-23:34).

Due to the tendency of politics to act as a set of competing performances, Congress is not the place we should start the conversation about reconsidering our conservation approach. Rather it should begin in academia, where crucial interdisciplinary discussions can happen. Academics can generate an updated consensus of the public’s opinion on biological conservation (23:35-46:27).

Even if conservation goals were agreed upon, there would still be many questions about how to achieve those goals. To what extent should humanity take the role of the world’s gardeners? Who gets to decide what the garden looks like? How much control should we have over species in order to achieve our conservation goals? What are the obligations of the public to pay for the conservation that it wants? These are all complex political and scientific questions that will have to be answered in order to make legitimate progress in conserving the biological world (46:28-1:02:10).

On this episode of Free Range, host Mike Livermore is joined by Harvard Law professor Richard Lazarus. Lazarus is the author of the book “The Making of Environmental Law”, which is now out in its second edition.

On of the key takeaways from Lazarus’ book is that environmental law is especially difficult because environmental science and economics collide with the lawmaking system. Ecosystems naturally spread cause and effect out over time and space. Therefore, activities that occur in one place at one time have consequences that arise at another place and time. Regulation and lawmaking systems struggle with this because these laws regulate people at one place in time for the benefit of another group at another time, leading to substantial distributional consequences. (0:36-16:03)

The distributional effects of environmental law have also contributed to the current polarized political situation regarding environmental action. In a state like West Virginia, there were political gains to be made by the Republican party by opposing climate regulation, because of the local economic costs of reducing the nation’s reliance on coal. As the parties vie for different constituencies, polarization naturally arises when groups opposed to or supportive of environmental protection sort into the two parties. This dynamic has played out over many issues in the past decades, but environmental policy may be particularly prone. (17:50-31:05)

The two then discuss environmental justice and its ties to the polarization of environmental law. Lazarus reflects on how his view of the topic was changed when a student in his hazardous waste class inquired about his theory that waste sites are more prevalent in minority neighborhoods. That interaction ultimately led Lazarus to rethink how he approached environmental law to focus more on race, class, and fairness issues. (33:30-44:21)

The conversation wraps discussing polarization and the role of the courts. Lazarus offers his view that attention to fairness issues and the commercial opportunities presented by environmental transitions can help build a bipartisan coalition in favor of environmental protection. The two then discuss the two most recent major environmental cases in the Supreme Court: West Virginia v EPA and the Sackett case. For Lazarus, the West Virginia decision to uphold the repeal of the Clean Power Plan was irresponsible but not out of bounds; it prevented an ambitious future plan for environmental protection, which had a solid, but not unassailable, statutory basis. He sees Sackett because it relied on shoddy interpretation of the Clean Water Act to undermine a longstanding and successful environmental program. Despite this, Lazarus has a somewhat optimistic view of the Court. Even if it will continue to be an obstacle to executive action to protection the environment, if it is possible to pass new environmental legislation to address issues like climate change, he believes that the Court will not get in the way. (47:28-1:06:23)

On this episode of Free Range, host Mike Livermore is joined by UVA Law professors Quinn Curtis and Mitu Gulati, as well as UNC-Chapel Hill Law professor Mark Weidemaier, all experts in the regulation of financial markets, to discuss new paper, Green Bonds and Empty Promises.

A wide range of institutions borrow within the bond market, including municipalities, corporations, and sovereign nations. The essence of a bond is a set of promises, which include repayment terms and limits on opportunistic behavior by debtors. One new feature of the bond market is the rise of ESG (Environmental, Social, and Governance) investing. ESG is widespread within the mutual fund industry, but has found a place in the bond market as well. But there is a difference between investing in the environment through stocks and through bonds. Stocks allow the investor to earn more as companies gain wealth by adapting to climate change, but bonds are paid back at a fixed rate of return, so the risk and return equation is different.

Green bonds are a type of bond that is associated with environmental projects, but the actual language in bonds dealing with sustainability or environmental performance is often vague. This was one of the major research findings in Green Bons and Empty Promises – purportedly environmentally friendly bonds don’t actually limit how the borrower can spend the borrowed money (0:50-27:58).

To understand the market for green bonds, Gulati, Curtis, and Weidemaier began by defining the category “green.” For this, they relied on third party databases that are used throughout the industry when investors are building ESG portfolios. Issuers likely determined their own categorization, essentially deciding whether their own bonds would be listed as “green.” The green label matters because these bonds might have a lower interest rate, referred to as a green premium, although research indicates that any green premium that does exist is very small. But, green bonds do appear to enjoy a some benefit in terms of liquidity because many investor want to show their clients environmental responsibility.

After collecting a sample of green bonds, the team then investigated the actual promises found in them. Interestingly, their research found that green bonds generally do not possess legally enforceable commitments to use proceeds for environmental projects. Interview research found that many know the “green” label is PR and don’t expect the status quo to improve. (27:59-57:56).

The conversation wraps up with the methods in which the situation can be addressed, and all four provide their opinions. Weidemaier explains that legal enforceability would remove the market’s liquidity, transforming it to an affinity bond market that is no longer fungible. Another option is to simply kill the market, since green branding can still happen but then no one is misled on such a scale. Curtis believes that there is some room for improvement, as certifiers can begin considering legal enforceability and the market would inevitably become smaller, but more credible. This theory depends on the sincerity of the investors’ demand. Gulati considers the green bond market to have the potential to evolve into something better, since it is currently booming and the way it operates is unique. Livermore describes significant environmental improvements as being made mostly through policy, so the value in private markets is mainly that they raise awareness for climate change and may aid in a cultural shift to support pro-environmental policy (57:57-1:09:20).

On this episode of Free Range, host Mike Livermore is joined by Vanderbilt law professor Ganesh Sitaraman and University of Pennsylvania law professor Shelley Welton. Both guests are experts in regulatory policy and are co-authors of a new case book Networks, Platforms, and Utilities.

Case books serve as the academic bedrock of law school classes. They are collections of seminal cases that facilitate the understanding of a specific field of law. Networks, Platforms, and Utilities collects primary source material that cover infrastructure areas such as transportation, communications, energy, finance, and technology. The subject of regulated industries has fallen away as a law school class in recent decades, but the industries did not disappear, nor did an important role for law and regulation. Networks, Platforms, and Utilities is intended to revitalize this area of teaching and scholarship (0:45-23:36).

One key distinction that helps structure the conversation on regulation is the difference between economic and social regulation. Economic regulation essentially overseas an industrial area, generally with the purpose of managing a natural monopoly. Social regulation addresses a wider range of political purposes, including addressing externalities such as pollution. In both types of regulation, questions of governance, democratic accountability, and social justice are present. And, of course, these two categories sometimes overlap (23:37-31:51). Net metering is an examples of a case of economic regulation that is also intertwined with broader social issues, particularly climate change, given the effects of that policy on renewable energy adoption (31:52-39:17).

Many of the cases covered in the book interact with antitrust law. In utilities-related cases, introducing competition as a remedy is not an appropriate solution for the marketplace. In situations creating competitive markets is not feasible, there is a second set of tools that can help achieve social goals in regulated, non-competitive markets. In these cases, the democratic process helps determine what goals the regulator should try to achieve (39:18-54:48).

Livermore, Sitaraman, and Welton discuss how to deliberate over these issues. One key question is whether it is possible to have robust participation when many of the questions regulators face are highly technical. Welton ends by discussion a hopeful example of powerful public participation is a series of conversations held by the New York Public Service Commission with low income ratepayers across New York. In her view, these individuals, who engaged in a particular governance process, were able to tell their stories and eventually push New York to adopt a different method of pricing electricity (54:49-1:04:11). Overall, Sitaraman and Welton are optimistic that the current political movement is shifting in favor of greater economic regulation, so that the law examined in Networks, Platforms and Utilities will only grow in coming years.

On this episode of Free Range, host Mike Livermore is joined by Jenny Kendler, the artist in residence with NRDC. Kendler is an artist and activist whose work focuses on climate change and biodiversity loss.

The conversation begins with a discussion of one of Kendler’s ongoing works, Amber Archive. To draw attention to the anthropogenic loss of biodiversity, this piece represents an imagined future where humanity is interested in undoing the harm that has been done. There are a number of energy intensive, high-tech initiatives in place to preserve DNA of threatened species, but Kendler imagines a more ancient and analog way (0:46-9:33).

The next work Livermore and Kendler discuss is Underground Library, which represents a library composed of discarded and unread books that sample the history of nonfiction works on climate change. This piece surveys what we’ve known about the state of the climate and how that knowledge has been dismissed. Many of these books went unread and were discarded from libraries as a result. Kendler uses a method of burning known as biochar to burn and eventually bury the books, representing their destruction and simultaneous preservation (9:34-17:48).

The Bewilder project highlights butterfly and moth eye spots which are not their eyes, but act as a decorative camouflage to evade predators. This piece serves as a biomimicry strategy inspired by activists who publish guides on how to disrupt facial recognition technology. The next piece is Birds Watching, which is a 40-foot sculpture that depicts 100 eyes of birds that are threatened or endangered by climate change. This piece is intended to represent the birds’ gaze upon us, leading viewers to question their relationship to these animals (17:49-29:21).

Studies for Bioremediation is a series of photo collages with a relationship to problematic monuments in Richmond, VA. Bioremediation allows for plants or living creatures to remove toxicity from a site. Creating a physical representation of this metaphor, Kendler implemented the idea of planting Kudzu, a quick-growing plant, at the base of the statues and letting nature do the work. The next piece is Music for Elephants, which is a restored 1921 vintage player piano with an all ivory keyboard. The music is based on data from scientists that work on elephant poaching. The keyboard plays a note for each month based on the amount of elephants that might die. This piece has a temporal existence as it unfolds through time, similar to extinction itself (29:22-48:52).

Kendler’s art is organically arising, stemming from a deeply research driven process. She finds a synchronization between the concept and the material which is very carefully articulated. Her work is always about culture change, as she emphasizes the importance of a contemporary moment that requires all of us to rise in whatever ways we can (49:53-1:01:52).

Amber Archive: https://jennykendler.com/section/480968-Amber-Archive.html

Underground Library: https://jennykendler.com/section/457238-Underground-Library.html

Bewilder: https://jennykendler.com/section/436164-Bewilder%20%28Deimatic%20Eyespot%20Camouflage%29.html

Birds Watching: https://jennykendler.com/section/466865-Birds%20Watching.html

Studies for Bioremediation: https://jennykendler.com/section/489142-Studies%20for%20Bioremediation%20%28Kudzu%29.html

Music for Elephants: https://jennykendler.com/section/442690-Music%20for%20Elephants.html

On this episode of Free Range, Mike Livermore is joined by Danae Hernandez-Cortes, an economist and professor in the School of Sustainability at Arizona State University who studies environmental justice and the distributional consequences of environmental policy.

The conversation begins with a discussion of the new emphasis within environmental economics on environmental inequality, with researchers now focusing on questions related to where pollution is located with respect to disadvantaged communities and how policy affects the distribution of environmental harm. Comparing environmental inequality to general inequality is difficult to do precisely, but Hernandez-Cortes describes the distribution in environmental inequality as comparatively sharper. Race and ethnicity tend to be an additional variable, beyond income as indicator of exposure to environmental harm. Many current inequalities are the result of historical legacies of discrimination and racism. There are many moving parts when it comes to environmental inequality, and it can be hard to isolate the most important causal variables. (0:40-18:05)

Environmental inequality often correlates with other kinds of inequality where race is a factor. However, Hernandez-Cortes points out that her research suggests that health and environmental inequality are not as related as one would assume.

The conversation shifts to market-based mechanisms as solutions for mitigating environmental inequality. While they tend to have lower costs and are more efficient, Hernandez-Cortes points out that they can potentially lead to environmental disparities by reallocating pollution. The effect of market-based mechanisms on environmental inequality is theoretically ambiguous and depends on context. In her work on market-based mechanisms to control greenhouse gas emissions in California, Hernandez-Cortes has found they have actually reduced environmental inequality, despite significant skepticism from the environmental justice community.

Nevertheless, for Hernandez-Cortes, it is important to solve environmental justice problems with policies that focus on that issue even though broad environmental initiatives such as reducing aggregate pollution can sometimes reduce environmental inequality. Additionally, when it comes to policymaking, many activists look to be included in the process instead of just caring about the outcome. (18:07-47:06)

Hernandez-Cortes notes that the quality of the outcome of a policy can affect the composition of people in a place. But, to assess the role of place in environmental inequality, many details are needed as factors like housing and income also come into play. Gentrification generally only results from a policy that changes the environment significantly. Overall, environmental issues are typically multi-generational, and they interact with other place-based sources of inequality, such as housing discrimination or unequal access to schools or health care, to have long term negative consequences. At the same time, interventions to improve environmental justice can also lead to benefits far into the future, as the same dynamics play out as a virtuous cycle of improvement. (47:07-1:01:01)

On this episode of Free Range, host Mike Livermore is joined by Paul Stephan, a comparative and international law expert at UVA Law and author of the new book, “The World Crisis and International Law: The Knowledge Economy and the Battle for the Future,” recently published by Cambridge University Press.

Stephan defines the concept of a knowledge economy as the increasing reliance on conceptual work rather than physical labor as a means of adding value to goods and services. He cites the example of container shipping and its impact on the distribution of goods around the world. Stephan argues that innovation is a driving force in the world economy and that international liberalism has emerged as a means of reducing barriers to talent and scalability, which are essential components of the knowledge economy (00:40-9:22).

Stephan discusses how global trade systems like the WTO and GATT were formed to promote international liberalism and reduce barriers to trade. He also discusses the “four freedoms” at the heart of the project of international liberalism, which are freedom of movement of goods, services, capital, and people. The expansion of Western liberal internationalism to other parts of the world after the end of the Cold War is also discussed. In the post-Soviet era, liberal internationalism and free trade institutions were expanded to other parts of the world, like Russia and China, in hopes they would follow (9:23-22:58).

Stephan discusses how the benefits of the knowledge economy are not spread evenly across the global economy with local distribution of winners and losers as well (22:58-28:32). In the 80s, Russia was a high human capital country but they chose a resource extraction pathway instead of disruptive innovation and production. For Stephan, China has a longer term perspective while Russia has pursued a strategy of using force in international relations and attempting to exploit divisions in competing polities (28:33-40:59).

In the context of climate change, Stephan emphasizes the importance of providing incentives for states to develop innovative technological solutions. He praises the transparency of the Paris Agreement and encourages the sharing of technological breakthroughs while still maintaining incentives to innovate (41:00-49:31).

Regarding the future of institutions like the WTO and the European Union, Stephan believes that these organizations can survive through adaptation. The conversation ends on a hopeful note, with the possibility of creating a world where incentives work to induce investment in carbon reduction, and where global cooperation is managed through an evolving but still robust international order.

On this episode of Free Range, host Mike Livermore is joined by Alex Wang, Professor of Law at UCLA, co-director of the Emmett Institute on Climate Change and the Environment, and expert on the law and politics of Chinese environmental governance.

Beginning with Wang’s initial experience in environmental issues in China, the US, and the NGO community, he discusses the generational and globally formative transformation he witnessed over his three decades in the field (1:37 - 9:36). After China’s entry into the WTO, there were some expectations for a broader economic and political liberalization. While there has been an increase in marketization and economic freedom, the Communist Party has maintained tight political control (9:37-14:26). Although formal political freedom is limited in China, Wang emphasizes that there are many mechanisms through which politics occurs; he also discusses important developments in the state’s administrative law and responsiveness to citizen demands in the past several decades. Wang discusses protests, concessions, and accountability that operate through less formal means, which can be effective at mediating social conflict, even if lacking traditional procedural fairness (14:27-22:18).

The conversation highlights the difference between the US and China in regard to responsiveness to recent large-scale protests which also speaks to the extremity of Chinese policy. While rapid change is possible in China, it is core to the design of the US political system to diffuse power, which limits capacity for rapid change (22:19-35:24).

Over the last two decades, there has been a large shift toward greater prioritization of eco-civilization and environmental protection in China. This transition is at the intersection of environmental, political, and economic change. Pollution began to be seen as a governance and social stability problem. Regarding the shifting geopolitics and the changing relationship between the US and China, the level of respect towards China has gradually changed throughout Wang’s experience over the past three decades. Globally, China has taken on a much more substantial leadership role, and power in the global system has shifted away from the United States and the single dominant player. Politics, energy security, and economic opportunities played a large role in China’s investment into green technologies, where they are now dominating the supply chain (35:25-53:47). Wang covers the human rights story, symbolic politics versus implementation, and the issue of achieving climate goals in light of economic consequences (53:48-56:41). The US and China may be in competition for the foreseeable future, so maybe this competition can be socially beneficial. But is it an open question whether this proxy battle will be enough to fuel serious decarbonization (56:42-1:04:59).