Five legal principles for the Green New Deal

The goal of Congress must be to “achieve net-zero greenhouse gas emissions” and proposes to accomplish this through a 10-year process that would include “meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources,” upgrading all buildings for energy efficiency, and the widespread electrification of vehicles and heating systems. It also calls for nature-based solutions to climate change, such as land preservation, afforestation and soil management. Additional first order goals acknowledge the great and unequal threats climate change poses to American lives and include providing all people of the United States with health care, housing and economic security.
Asked if nature-saving and modernizing changes might have come to the Tennessee Valley without the massive intervention of the TVA, a local newspaper editor pondered the question and then answered, “Well, they didn’t.” We have had decades to transform our society to meet the emergency of climate change and have not, either. It appears as though it will require an intensive effort of the scale and scope of a New Deal to do it. With luck and leadership we might replicate Rooseveltian successes without this time sacrificing so much social justice.
By Michael Burger, Washington Post, 22 May 2019 
Michael Burger is a senior research scholar at Columbia Law School and executive director of the Sabin Center for Climate Change Law.

As the Green New Deal continues to attract attention on both the left and right, a key element has been missing from the conversation: What the law behind all these big ideas might actually look like. The Green New Deal, if there is to be one, won’t just be a resolution like the one introduced by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and endorsed by most Democratic presidential candidates. And the systemic changes it calls for simply cannot be accomplished by executive fiat or court order. Ultimately, it will be a 500-page piece of federal legislation. Here are five legal principles that should guide it:

1. Go big

The GND resolution is enormously ambitious. It recognizes that the goal of Congress must be to “achieve net-zero greenhouse gas emissions” and proposes to accomplish this through a 10-year process that would include “meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources,” upgrading all buildings for energy efficiency, and the widespread electrification of vehicles and heating systems. It also calls for nature-based solutions to climate change, such as land preservation, afforestation and soil management. Additional first order goals acknowledge the great and unequal threats climate change poses to American lives and include providing all people of the United States with health care, housing and economic security.

Critics have lambasted this ambition. The proposal has been called unrealistic and infeasible by some in the political center and center-left, and stupid, dumb, evil, a socialist con game and a communist manifesto by some on the right. But, from a drafting perspective, the GND’s scope, and its visionary language, would serve a practical purpose. What Congress says about the nature of the problem, its purpose in taking action and the range of solutions will serve as a lodestar for future generations. It will set the parameters for government action and influence the course of corporate behavior decades into the future. The key innovation of the GND is its recognition that climate change is locked in, and that our resilience to it depends not only on reducing emissions but also increasing social and economic opportunity for everyone. By going big, the GND can offer a new vision of environmental law fit for the Anthropocene.

2. Be specific

report issued by the Intergovernmental Panel on Climate Change last fall concludes that we have about a decade to make steep cuts to greenhouse gas emissions, and until mid-century to achieve net-zero emissions, to avoid catastrophic changes in the climatic system. A congressional punt, which would delegate to the executive branch the work of developing a plan, proposing it, taking comments, finalizing it and then defending it in court, would occupy at least half of that time. And it would leave decisions about whether the agencies’ eventual plan is even legal to agency heads appointed by the White House and the Supreme Court. Neither of those seems like a good option at the moment.

If Congress is going to legislate it must answer questions both major and minute about how and when we will reduce our climate footprint and increase our resilience to climate impacts. The Waxman-Markey bill (which stalled in the Senate in 2010) gives some idea of what this could look like. That bill detailed a renewable electricity standard for utilities, a cap on nationwide greenhouse gas emissions, a cap-and-trade program, new energy efficiency standards, a worker transition program, and funding for research and development of new technologies. The GND should seek to go even deeper and address areas left alone by Waxman-Markey — for instance, prohibiting fossil fuel production on public lands, and requiring that states, cities and corporations assess, disclose and prepare for climate risks. And in every instance it should be as specific as possible.

3. Set deadlines

Congress should establish near-term, binding deadlines for administrative action and compliance by entities regulated by the GND. Other statutes have done thisThe Clean Water Act of 1972 gave polluters five years to install specific pollution control technologies. The Clean Air Act of 1972 required that states achieve compliance with air quality standards by 1977. The Clean Air Act Amendments of 1990 required that the largest power plants deal with acid rain pollution by 1995. The Energy Policy and Conservation Act of 1975 set numerous deadlines for the Department of Energy to establish energy efficiency standards for residential and commercial appliances. The Hazardous and Solid Waste Amendments of 1994 established permitting deadlines for hazardous waste facilities.

Of course, federal agencies miss deadlines. States miss deadlines. Cities miss deadlines. Companies miss deadlines. Everyone misses deadlines. Congress must counteract this tendency with what are known in the field as “hard hammers.” A civil penalty of $50,000 per day of noncompliance should be enough to motivate polluters, as might an absolute prohibition against operating for those who fall too far behind. Lawsuits should be an option, as well. Such measures won’t just ensure compliance. They’ll also send important messages: Time is of the essence. This is a priority. Compliance is mandatory.

4. Let them sue

Much of the success of our nation’s environmental laws is a result of citizen suit provisions, which empower individuals and nongovernmental organizations to sue the government and corporations for failing to enforce or comply with the law. The citizen suit provisions included in the 1970s Clean Air Act, Clean Water Act, and Endangered Species Act were the first to empower citizens — so-called “private attorneys general” — to bring cases to defend their personal interests in environmental and public health values. These cases have allowed the beneficiaries of environmental laws — the public — to include themselves in what was once a two-way conversation between the government and industry.

Letting people sue has elevated the status of the public interest and shaped agencies’ agendas and companies’ activities. The Green New Deal should ensure that citizens are not only invited to participate in an open and transparent policymaking process, but also are authorized to bring lawsuits when agencies and companies fall short of the law’s demands. For example, imagine that the GND requires utilities to generate 100 percent of their energy from non-GHG-emitting sources by 2035 (as Jay Inslee’s emerging climate policy platform does), and your utility is not even trying to do that; you should be authorized to file a lawsuit in federal court to seek penalties and a court injunction requiring compliance.

5. Make floors, not ceilings

Our nation’s environmental and energy laws are a mess of federal-state relations. But the system of cooperative federalism, whereby the federal government establishes minimum standards and states figure out how to comply, works. In this system, Congress sets “floors” designed to prevent a race to the bottom among jurisdictions competing for industries seeking lax regulation. For instance, EPA sets air and water quality standards under federal law, but states can require even more protection. In some cases, though, Congress creates a “ceiling,” which can preempt state and local innovation and actually prevent a race to the top among jurisdictions seeking to provide higher levels of environmental and public health protection. Energy efficiency standards for refrigerators and freezers, for example, are uniform throughout the country.

With climate change, floors are better than ceilings. We need every piece of the machine to work as hard as it can as we collectively seek to mitigate and adapt. We cannot afford to lock in half-measures or small improvements.

As such, Congress should set national standards for increasing renewable energy, electrifying transportation and buildings, achieving greenhouse gas emissions reductions from agriculture and industrial facilities, assessing climate risk and adopting climate adaptation plans, providing health care and access to employment, and whatever other measures make it into the final bill. But if a state or a city wants to go further there is absolutely no reason it shouldn’t.

After all, we need as much ambition as we can muster, and there is no time to waste.

The Green New Deal has to be more than just a branding exercise.

A sign at a United Auto Workers candlelight vigil in Detroit on Jan. 18 for General Motors workers at assembly plants targeted to close in the city. (Anthony Lanzilote/Bloomberg)
By Teal Arcadi, a Ph.D. candidate in American history at Princeton University. January 28

On Nov. 13, one week after Democrats rode the blue wave to victory in the midterm elections, Rep.-elect Alexandria Ocasio-Cortez (D-N.Y.) made headlines when she joined economic and environmental activists outside the office of Minority Leader (and presumptive Speaker of the House) Nancy Pelosi.

Demonstrators challenged Pelosi with simple signs that read “What is your plan?” and “Green jobs for all.”

Organized by the Sunrise Movement, activists demanded that House Democrats draft a “Green New Deal” offering legislative solutions to economic inequality and climate change. Ocasio-Cortez’s appearance amplified their voices and created political momentum behind the proposal.

The Green New Deal that Ocasio-Cortez and a growing list of members of Congress now support is straightforward: Power the U.S. economy with 100 percent renewable energy within 12 years, establish a federal living-wage jobs program, institute universal health care, and help workers move from carbon-tied jobs to more sustainable employment. People need jobs and economic security; the world needs green infrastructure. Simple.

But those are ambitious goals, and Green New Dealers need to find ways to achieve them legislatively in a political context that has not been favorable for confronting climate change, let alone inequality. Green New Dealers would do well to follow Ocasio-Cortez’s lead in drawing inspiration from the original New Deal. They must borrow from the spirit of experimentation that shaped President Franklin D. Roosevelt’s bold policy proposals in the 1930s and be willing to think broadly and adaptably about how to achieve their ambitious goals.

Like the Green New Deal today, the 1930s New Deal began as a framework for change rather than a precise set of policy proposals.

The 1930s New Dealers, led by Roosevelt, confronted an enormous challenge: lifting Americans out of the worst economic collapse in the nation’s history. Searching for solutions, they knew that no idea was too big to consider. More than 11 million Americans were out of work, nearly a quarter of the nation’s workforce. Banks, factories and farms failed en masse, ripping apart the nation’s systems of exchange.

Confident, however, that federal intervention was the solution to the disaster, New Dealers moved their agenda forward with tenacity — and flexibility — despite political setbacks.

Roosevelt first used the term “new deal” in his speech accepting the Democratic Party’s presidential nomination in 1932. “I pledge you, I pledge myself, to a new deal for the American people … this is more than a political campaign; it is a call to arms,” he said. Calling for “courage” from all, the Democratic nominee promised to use the power of the federal government to lift the nation out of the Great Depression.

In a landslide election, Roosevelt won all but six states. With popular support behind him, he and his “brain trust” of advisers followed through on their promises to direct the federal government’s capacity toward turning around the economic disaster.

A cornucopia of policy experiments followed. Each intended to stabilize various parts of the failing American economy. Some worked, some did not — and that was the point: to experiment with solutions to the national crisis until a durable fix was found.

The National Industrial Recovery Act (NIRA), for instance, kick-started the economy in 1933 through stimulus and security measures. Price and wage regulations offered stability, while the act’s famous Section 7(a) protected collective bargaining rights for workers. With boosted spending confidence, workers cycled their wages back into the economy, helping overall growth. They could also more confidently deposit their earnings in banks, thanks to another early New Deal intervention: the Federal Deposit Insurance Corporation.

The NIRA provided stimulus through other measures, as well. Notably, it established the Public Works Administration (PWA), which created jobs for the unemployed on projects such as dams, bridges and schools. With a budget of $3.3 billion in its first year, the PWA made up an astonishing 5.9 percent of the nation’s economy measured in gross domestic product and represented a massive investment in the nation’s economic and social infrastructure.

The NIRA, however, was short-lived. In 1935, the Supreme Court struck it down, holding that the statute violated the Constitution’s commerce clause. Undeterred — and showing their experimental spirit — New Dealers moved on to other policy solutions. The 1935 National Labor Relations Act replaced the NIRA’s Section 7(a) to protect workers’ rights to collective bargaining, and a newly established Works Progress Administration continued to put Americans to work building everything from hospitals to highways.

The Civilian Conservation Corps (CCC), another successful public works program, took a different angle, employing 2.5 million men (women were excluded; it was not a perfect program) on projects related to natural resource conservation.

In fact, the CCC shows how to blend economic stabilization and environmental sustainability, the goal of today’s Green New Dealers. CCC workers constructed new irrigation systems for farms, worked on flood and fire prevention, built service roads and planted 3 billion trees. In the short term, the CCC employed out-of-work Americans, putting money in their pockets that then circulated through banks and markets, reviving the economy. In the long term, the CCC created healthier farms, timber plots and entire ecologies, offering the American economy more durable growth prospects.

The process of experimentation worked. As historian Lawrence Glickman writes, the “New Deal laid the groundwork for the economic boom that made the United States the envy of the world in the postwar decades.” The economy grew 8 to 10 percent per year throughout the 1930s (with the exception of a brief recessionary period in 1937-38). Unemployment fell from the staggering 25 percent mark when FDR took office to 14.4 percent by the end of the decade.

Like their 1930s forebears, the Green New Dealers will face obstacles in reimagining a more equitable and less carbon-filled world, especially given the Republican Party’s disregard for inequality and increasingly insidious denial of basic climate science.

There are also challenges within the Democratic Party. To make the Green New Deal reality, Ocasio-Cortez proposed forming a Green New Deal select committee, limited to members who do not accept money from fossil-fuel interests, with the power to draft legislation ready for a hoped-for Democratic president to sign into law in 2020. But Pelosi and other party leaders have so far demurred, leaving the next step for Green New Dealers unclear.

But the Green New Deal has secured traction with the public. A recent poll conducted by Yale University and George Mason University shows that 81 percent of registered voters support the Green New Deal. The combination of strong grass-roots support and clear political leadership presents an opportunity to turn the Green New Deal’s big goals into tangible policy, at a moment when inequality is on the rise, 40 million Americans now live in poverty and we may have just 12 years left to avert catastrophe caused by climate change.

“The only way we are going to get out of this situation is by choosing to be courageous,” says Ocasio-Cortez, echoing Roosevelt’s campaign call for courage. Now she and her colleagues must adopt Roosevelt’s flexibility and spirit of experimentation if they hope to usher in a new era of economic stability and environmental sustainability.


What Green New Dealers can learn from the first New Deal: The hard part of a Green New Deal is not environmental reform. It is social justice.

Workers plant a shelterbelt strip of trees on the farm of Dr. A.H. Bungardt, west of Cordell, Okla., 1935, on the windswept plains of western Oklahoma during reclamation following the Dust Bowl. (AP Photo)
By Eric Rauchway, professor of history at the University of California, Davis, has written six books, most recently “Winter War: Hoover, Roosevelt, and the First Clash Over the New Deal.”
January 31

Seeking to create a politics that will address the climate crisis, Democrats ranging from Rep. Alexandria Ocasio-Cortez (D-N.Y.) to Sen. Elizabeth Warren (D-Mass.) to Sen. Kamala D. Harris (D-Calif.) advocate a Green New Deal, evoking Franklin D. Roosevelt’s mobilization of Americans to fight the Great Depression. With their emphasis on economic restructuring, public employment and social justice, the Green New Dealers have much in common with their Democratic predecessors. Indeed, they have more in common than they know: The original New Deal was itself a green New Deal, and modern Democrats should learn from its successes and failures alike.

When Roosevelt promised Americans a New Deal upon accepting the Democratic nomination for president in July 1932, he pledged a series of programs to defeat the Depression and prevent its recurrence. Prominent among them was a proposal for sustainability in the use of natural resources. At the convention, he exclaimed, “Why, every European Nation has a definite land policy, and has had one for generations. We have none. Having none, we face a future of soil erosion and timber famine.” The Dust Bowl disaster vindicated his dire prophecy: Plowing and planting unsuitable soil with little regard for its natural properties led to the destruction of the prairies and the impoverishment of farm regions.

Roosevelt inherited a conservationist consciousness from generations of American leaders including his distant cousin Theodore, who had encouraged policymakers to think in what later Americans would call ecological terms about federal control of waterways. But it fell to Franklin Roosevelt to transform the nation’s history of occasional damming into a cohesive case for regional development, including flood control, resettlement and, as he said when launching the New Deal in 1932, “the kind of public work that is self-sustaining.”

One of the first and most popular programs of the New Deal was the Civilian Conservation Corps (CCC), a project that lasted from shortly after Roosevelt took office in 1933 until early in World War II, when the federal employment of young men shifted from conservation of nature to destruction of Nazis. CCC members planted more than 2 billion trees, controlled erosion with scientific management on more than 40 million farm acres and undertook hundreds of forestry and other projects for environmental preservation while providing jobs to about 3 million American men.

Land for CCC work camps was easy to come by in the West, as the federal government had been the largest land proprietor since the territorial days. To ensure the project would be national in scope, Congress authorized Roosevelt to buy some 20 million acres for CCC camps in the East. The program thus increased federal land holdings by 15 percent and brought the federal government’s mission of conservation into the neighborhood and consciousness of all Americans — West and East, rural and urban, rich and poor. It taught its workers and everyone who hiked through its projects or picked up its pamphlets about Americans’ shared natural inheritance of timber, soil and water and the effort required to ensure its preservation.

To modern minds, CCC’s mission of conservation might seem to live in tension with New Deal programs for public works, especially the massive concrete dams that straitjacketed rivers and destroyed habitats for people and beasts alike. But to the New Dealers, the dams represented part of a program designed to adapt to an environment despoiled by decades of unconsidered exploitation.

For example, Congress tasked the Tennessee Valley Authority (TVA) with charting the “agricultural and industrial development” of the whole watershed of the great river. TVA dams would prevent flooding, allow reliable shipping and generate electricity for people who had never had access to it. This then led to billions of dollars of private investment and associated jobs in the region. TVA power helped to make nitrates for fertilizer, and its outreach programs taught farmers the sustainable use of their land. Like CCC, TVA planted trees and reforested acres. It stocked fish. Over the first three decades of its operation, the waterfowl population on the Tennessee River multiplied by 25 times. TVA became a model for global green development practices, including those sometimes employed in later decades by the World Bank.

All of this aimed to fulfill Roosevelt’s goal of compelling Americans to readjust their attitude to the land that sustained them. He insisted his programs have as their basis an “understanding of social justice” and said “relief measures must not cause a ‘freezing’ of national progress along lines of social equality and justice.” The New Dealer-in-chief pledged his programs would not only rescue the nation from the crises of the 1930s but also provide greater equity.

The reality differed from Roosevelt’s vision. TVA in particular operated in the segregated South and largely preserved the region’s racist hierarchy, compromising Roosevelt’s principle of equity to get the support of segregationist politicians. Its workers built parks that mandated separate places for black Americans to boat and fish and swim. When TVA relocated residents, it bought out farm owners, but made no provision to pay for poorer tenants to move. One of its dams flooded an area inhabited by Cherokee and their ancestors for thousands of years.

Moreover, the process of industrial development often led to more, and unanticipated, environmental despoliation. In later years a TVA largely insulated from political checks became a major coal producer, strip miner and violator of the Clean Air Act, eventually reaching an environmental settlement with the federal government that owned it.

Like the Green New Dealers of our time, the New Dealers of the 1930s sought to meet a major environmental crisis while also reorienting the American economy toward what they called, just as we do, greater social justice. They dreamed of re-engineering great interdependent systems, of whole regions encompassing people and flora and fauna. If they envisioned river watersheds while we contemplate coastal habitats, the need to think in terms of economics and politics together with nature and culture are the same. To realize those dreams, Franklin Roosevelt pandered expertly and compromised ruthlessly, accomplishing an immense amount in a short time at considerable cost — including his own stated ambitions of a socially just transition to the new era he imagined.

Asked if nature-saving and modernizing changes might have come to the Tennessee Valley without the massive intervention of the TVA, a local newspaper editor pondered the question and then answered, “Well, they didn’t.” We have had decades to transform our society to meet the emergency of climate change and have not, either. It appears as though it will require an intensive effort of the scale and scope of a New Deal to do it. With luck and leadership we might replicate Rooseveltian successes without this time sacrificing so much social justice.

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