Environmental Politics and Law

EVST 255 - Lecture 24 - Reflection and Lessons

Chapter 1. Case Updates on Earth Day; Imagining an Ideal Society [00:00:00]

Professor John Wargo: Okay everyone, let’s settle in. And welcome to the last class. A couple updates that I thought you might be interested in: U.S. District Court in San Juan just dismissed the case of 7,000 Viequense who had filed a suit against the federal government, the Department of the Navy, seeking compensation for damages to their island and their health. So that this suit has been in the making for about seven years, and it will be appealed. Also the Ebling case that you may have read about in Green Intelligence, the two young children that claimed exposure to pesticides at a very young age. That is going to trial in August now, it was just announced, after ten years. So this should give you pause to think about the effect and cost of litigation.

In terms of TSCA Reform, TSCA Reform was just introduced into both the House and the Senate, in the Senate by Senator Lautenberg, in the House by Henry Waxman. And for the first time in nearly twenty-five years, there’s some anticipation that there will be serious reform of the way that commercial chemicals are regulated in the country. The chemical companies, curiously, are motivated to seek changes in this law, because if products that they make in this country are not tested to the same standard as product testing requirements in Europe, then U.S. chemicals will not be allowed to be sold in Europe. So that chemical companies are extremely concerned about the idea of harmonizing law between the U.S. and the European Union.

Cape Wind has not been decided, but there really appears to be no clear direction on the part of Ken Salazar at this point. You should keep your eyes open for that over the next week or so. And a diesel update. We talked about diesel exhaust and we talked about the health consequences of particulate matter. But there is new evidence that was released quite recently by Nadine Unger, who is going to be a new assistant professor here next year who has worked with the Columbia University and NASA on the effect of particles. And it’s kind of a curious effect that particles of one form, especially those that are attached to organic matter, tend to have a reflective effect to radiation. So it basically may have a cooling effect, whereas black carbon itself tends to absorb the radiation, which would have a warming effect. So it’s interesting. Diesel exhaust has been fingered, identified as one of the key sources of black carbon in the atmosphere that we need to pay much more attention to for its warming effect on climate.

Happy Earth Day. Forty years ago today, Earth Day occurred. And your parents and I probably remember it pretty well.  I was in Philadelphia at the time. And it was really an interesting and highly confused time to be a college student. And what was interesting about it is that it was a period of collision between different social movements that really had a core based in universities. And the collision was among the anti-war movement, the civil rights movement, as well as the environmental movement. Nobody really knew what that meant at the time, but sitting in Philadelphia, living in Philadelphia, watching the yellow sunsets that occurred every evening because of the filthy air. And rowing on the Schuylkill River with the crew team having to scrape the globules of slime and material chemical wastes that were deposited legally into the Schuylkill River really was an unhappy experience. So really, it was also the dawn of the modern era of environmental law in the nation. And the Clean Air Act revisions, the Clean Water Act revisions, the 1970s were really a time when great energy was put into the design of environmental law. And there was great expectation on the part of people that had worked in these movements too that environmental quality would change quite radically.

So I wanted to reflect with you today about imagining an ideal society. We think that we’re facing many very severe problems. And one of the themes of this course has been to try to help you judge the effectiveness and potential of environmental law to shape behavior so that people will behave more responsibly toward the environment and protect human health and protect scarce natural resources.

So for a moment, I’d like you to kind of step back away from your perception of all the problems that we face. And instead, to have you imagine an ideal society. So what would it look like? Well, environmental law really targets itself toward damages. So knowledge is really a critical element of it. And the knowledge that’s necessary in order for it to be effective is quite complex. So in the ideal world, you would want to have perfect knowledge of externalities, perfect predictive capacity. What’s the effect of my behavior going to be? You’d want to have an efficient system for compensation for damages, because all damages could never be avoided. You’d also want to have a literate public, a public that was capable of understanding the technical information at a level of detail that would make them potentially effective participants in decision making. So literacy, the capacity to learn, is a really important component of this.

You would want to have governmental authority and the resources to regulate. So not only the right to regulate that would be authorized by Congress or a Parliament, but also the resources to regulate. And those don’t normally go hand in hand. So that you often get the passage of a law, but you don’t get the allocation of resources. So there’s the authorization of money that’s necessary, then there’s the appropriation of money that’s necessary. And then EPA or whoever the agency is have to actually expend the money in order to have an effective response. In an ideal society, I’d say also that we need to pay, we would be paying attention to the most vulnerable. They would be identified and they would be protected by statute. There would be equal protection for all. And I’ll talk more about inequality in environmental law in a few moments.

And we would have figured out how to manage natural resources, such as our forests, our soils, our wildlife, in a sustainable way. And it’s quite interesting. When we use the word sustainability, I tend to cringe. It’s not my favorite word. I think it’s ambiguous and I think it is used way too loosely. But where it seems to be clearest and have provided a model for effective law has been with respect to managing resources such as forests, fisheries, where you can monitor a population, you can monitor its rate of growth, its reproductive success. So that thinking about sustainable management of natural resources has been in some instances a success story. I think I would imagine a stable climate as well.

Chapter 2. What’s Been Successful and Why [00:07:53]

So I wanted to have you think with me also about what’s been successful? What can we point to as success stories? And I think that a number of the cases, I chose the cases quite deliberately for this course, and a number of them demonstrate the potential of law to control behavior, to achieve some of these objectives. And I think clearly, the wilderness protection system and the national park system that we have in the United States really is the envy of many nations in the world. So that we have effectively set aside lands and we’ve restricted human access and certain behaviors and extraction rights in these areas. And that really has been quite a successful policy. Our national seashores I think represent a really far-sighted approach that were meant to provide recreational opportunities in the coastal zone. But as I mentioned in the lecture on looking at Cape Cod and Fire Island and Padre Island and Point Reyes, the fact that the government went into those areas and bought them, or consolidated federal ownership, is going to restrict future development in a way that will reduce long-term costs associated with sea level rise and increased storm damage.

The Adirondack Park strikes me as also being a real success story in many ways. For me, it really represents a model for regulating private land use in the vicinity of highly valuable public lands. And remember this park was set aside back in the 1870s. So that the Adirondack Park Agency concept was really designed initially to protect what they thought of as biological diversity, ecological diversity as well as integrity, whatever that meant at the time, back in 1972, when the Park Agency statute was passed.

But almost inadvertently, they had designed an energy conservation plan that really was quite remarkable. Remember this idea that you regulate and demand very large lot sizes in the remote areas. And then you basically take away the density requirements in the towns and villages. There are really no urban centers in the Adirondacks. But this open space preservation and incentive to increase density in the existing areas that already are developed and have infrastructure, have roads, have electric lines, et cetera, it really is remarkable. So in terms of an energy conservation strategy that one might embed into a land use plan, it really was very innovative. They also used the idea of transferable development rights in the Adirondacks that I think is a very cool idea. There’s a parallel here to the idea of setting up these ecosystem service banks.

So I wanted to give you the example of a windmill, we talked about wind energy the other day. I want to give you the idea that supposing you had property next to a windmill and you thought that you were being adversely affected by that. Is there a way that you might be compensated that would prevent you from litigating, that might make you more accepting of the windmill? So imagine that you set up a square around a windmill or a wind turbine. And you basically use the 1,000-foot or the 300-meter distance from any property boundary that’s been recommended to reduce adverse effects. So that that would constitute roughly about a hundred acres.

Well supposing you had a patch of people that lived adjacent to that land. What could you do for them that might make them more accepting of it? Well one thing you could do would be to provide them with development rights. But maybe they didn’t want to — they may not want to develop on their own property. So that you could set up a bank whereby they could deposit these development rights in that bank and then somebody who lived in a receiving zone or purchased property in a receiving zone, the receiving zone designed to increase density, say in one of these urban centers that I just mentioned, then the developer that wanted to increase the density of land that he owned or would buy in that urban zone would go to the bank and purchase the credit so that the adjacent landowner to the turbine would be compensated and development would be encouraged to grow near existing infrastructure. So the ecosystem service banks that have grown up associated with wetlands, degradation also with stream mitigation banking, they present I think a real model for us to follow in the future.

The SO₂ cap and trade program was clearly a success in reducing sulfur dioxides and acid precipitation. And a variety of other cases that we went through in the course I think also demonstrate the potential effectiveness of law. The nuclear weapons testing ban back in 1963.

Population control. If this were Earth Day back in 1970, I remember the lectures on Earth Day back in 1970, and they were about population control. Population was thought to be the source of environmental degradation, particularly in the developing world. And population control efforts have been really quite successful. We haven’t discussed population control. And I’m actually a little embarrassed to be running an environmental studies major without a demography element to it. But it really is a very important aspect of environmental degradation. In terms of — and as the father of children, I could think of myself as having created with my wife beautiful young children. I could also think of it as creating future consumers that are going to be spending millions of dollars buying goods and services and developing land and doing whatever that would have an adverse effect on the environment. So that the mantra back in 1970 was population control is the primary approach that we should be taking to control environmental damage.

The success in pesticides associated with the chlorinated hydrocarbons, DDT, aldrin, dieldrin, chemicals that would bioaccumulate. We really learned the bioaccumulation story predominantly from strontium-90 back in the weapons testing era. But then it was repeated in the 1960s and 1970s. And these compounds were successfully phased out. It was one of the first objectives of William Ruckelshaus when he became the first administrator to the Environmental Protection Agency. And you can see in the graphs the steady decline in concentrations, not just in birds but in fish and other wildlife, as well as in human tissues. A great success story. And that also was modeled in the history of lead. And as lead was taken out of gasoline, as lead was taken out of paint. You can see the concentrations declining and the nations children and in other nations where lead was removed. It’s really a very striking success story.

Chlorinated fluorocarbons, known to adversely affect the stratospheric ozone layer were removed from aerosols. PCBs were removed from transmission tower coolers and other electronics, they also had built up and bioaccumulated in wildlife as well as human tissues. The prevention of use of asbestos as a building material. Our tobacco regulations. We have one of the lowest adoption rates now than has existed at any other point previous in the twentieth century.

And food safety. You may think of food safety as kind of an odd topic, but in low-income parts of the world, food safety is a major source of illness. And even in this country, the estimate by the Centers for Disease Control of the number of illnesses per year experienced by contaminated food is seventy-six million. That’s an enormous issue. It has to do with the availability of water and the control of microbes and the way that food is handled and washed and stored as well as how it’s cooked. The organic food movement has been successful. It’s, as I mentioned earlier, the most rapidly growing sector in the food industry. And drinking water quality. Poor drinking water quality in low-income parts of the world is a major killer. The World Health Organization estimates that well more than a million children die from contaminated water each year. We also suffer much less from respiratory infections.

So forgive me as the computer for some reason is running through each one very slowly. Come on.

Chapter 3. Ongoing Challenges [00:17:38]

So in contrast to where law has worked well, where has it not worked well? Well I think fossil fuel policy has been disastrous, especially the kinds of subsidies that we’ve allowed the industry to receive. And I mentioned that simply the absence of investment in public transit and the enormity of the public investment in highway development and highway maintenance. Our renewable energy policy has also been a disaster. And despite the improvements and the increase in funding that’s going into renewable energy, it’s nowhere near sufficient in order to increase the proportion of renewable energy that is necessary to deal with the CO₂ problem that we face.

Personal consumption, individual consumption, individual purchasing is going up, as are the number of people in the country. We’re at about 310 million people, we’re projected to go to about 350 in about the next forty years and perhaps reach 400 million people in the nation. So you multiply consumption of each individual times that scale, we’re sitting in a nation now where we have roughly 250 million automobiles. And we’re likely to see that rise quite substantially. So that people have fled to the suburbs. Now they can’t sell the property in the suburbs, even if they wanted to live in an urban area, because of the declining land value.

Parks and protected areas are not being created any longer, so that the rate of adoption of parks and protected areas, even though I just claimed that they were a great success where they were created, the rate of establishing parks and protect areas has fallen off quite dramatically since that time. The Park Service’s land acquisition efforts have declined.

Biological diversity loss is also increasing as a function of habitat loss, as a function of chemical applications, pesticide applications. Marine species exploitation is increasing. The rate of extinction is increasing in the world’s oceans, driven in part by changing water quality in the coastal zone, but driven also by unregulated fishing, particularly beyond the 200-mile limit.

The outdoor as opposed to indoor focus of the Environmental Protection Agency has been a serious problem. If you gave me a sample of your blood, of your urine, of your hair, and we went down to CDC and had it tested, we would find a variety of chemicals that come from the built environment. So that the absence of attention to where we spend our time, which is indoors, is important. There was a new study that was just released that announced that the average amount of time spent by the nation’s children outdoors is now forty-two minutes per week. The average amount of time that children now spent in front of electronic media is now fifty-two hours per week. So there’s something to that statistic that is worth paying a lot of attention to. I’m here because my dad took me hiking when I was a kid. He took me to parks. We’d hang out by streams. He’d take me down to the beach. But this is an increasingly rare experience, as people are spending more time indoors and more time staring at electronic equipment.

Hazardous sites; we are adding the number of hazardous sites to the lists maintained by the government, the federal government and state governments every year. So that we’re not restoring more than we’re adding. And this is a very serious problem. And the lessons of Vieques, the long amount of time, the enormous resources necessary to clean these facilities up, now you should think about that. In five years, in six years as you think about where you want to live, where you’re going to rent a house or an apartment. You think about where you want to buy a house or buy land, you should pay a lot of attention to the land use history in these areas so that you can be sure that you’re buying land that was not formerly a disposal site. Chemicals in commerce, plastics in our bodies, and product labeling is really one of the weakest among the higher income nations in the world.

Another key issue that I’ll talk about a little bit more in a minute is what I call narrative advantage. And if you think of the variety of different sources of our confusion about what to buy, how to behave, what energy consumption is associated with the purchase of an apple as opposed to a hamburger. As you think about how much we don’t know, think also about how much what we do know and how our impressions are created by the narrative advantage of the powerful. The narrative advantage of the corporations as well as government, so that they are basically framing the issue about what’s worth worrying about.

I wanted to also say that we did not have a chance to talk much about CO₂ trading programs. But we have a very active and important one ongoing right here in Connecticut as we’re part of a ten-state plan to reduce CO₂ emissions from the power plants in this region. And this was adopted as law in nine of these states, but not in New York. And it’s interesting that one energy company, the Indeck Energy Company, sued the State of New York for creating cap and trade regulations with no statutory authority. So could New York establish cap and trade regulations and impose it on the utilities in its state without statutory authority? So this case is still pending. The other states have adopted this approach. So that for all the utilities or for the largest utilities that contribute CO₂ in this region, there has been a ceiling that has been established. And between now and 2012, the ceiling will be stable and then it will decline as total amount of CO₂emitted that’s allowable will be reduced and they will have to retrofit, they will have to fuel switch in order to figure out how they’re going to meet that ceiling. It’s a very important approach.

So if you think back on what are the key problems with our broad body of environmental law, well, it’s fractured by problem. It’s fractured by media, by air, water, food, consumer products. And often these problems evolved case by case and motivated political action in individual states or motivated the legislators in those individual states to approach Congress and suggest that this is an example of a problem that exists in every state, we should pass national law to address it. But each law is set up very differently. It was not set up based upon a certain set of overriding guiding principles such as exist in the European Union. And I’m going to make a few comparisons in a few moments to European environmental law by contrast. It’s fractured by level of government, so we have law that is established by local governments, state governments and the federal government that is often incompatible, and it’s extremely confusing for those that want to develop, such as the wind turbine farm, Cape Wind up in Massachusetts. It’s a classic example of regulatory confusion and the litigation and delay and cost that ensues.

We have little surveillance at the scale that’s relevant to the individual, and something that we have not spoken about that’s really important is that environmental monitoring responsibilities and surveillance responsibilities have largely been delegated to those that are regulated over the past several decades by the Environmental Protection Agency. So that’s an interesting idea. I mean, if you are say the maker of benzene, you are responsible to report your benzene emissions from your smokestacks to the Environmental Protection Agency. There’s no one else that is independent that monitors it. Or is there no monitoring equipment that reports directly to the Environmental Protection Agency. So thinking about the way that the surveillance system is set up is really critical to the long-term effectiveness of environmental law.

The next point is the pace of regulation. And I just mentioned the pace of litigation a few moments ago. The pace of regulation is often slower than litigation. So that you would want a system ideally to be responsive to newfound evidence of risk. So supposing I found that chemical X in the food supply is exceptionally dangerous and people are highly exposed and they’ve got it in their tissues. Well, following that discovery and following a consensus among scientists that that is a significant threat, it normally takes ten to fifteen, and I’ve seen twenty years with respect to pesticides, before the government responds and then changes the regulation to lower the allowable use of the chemical or sets a different ceiling on it. And this basically — law has the effect then of providing a false sense of security when you think, my gosh, we have three dozen statutes in place, we must be reasonably well protected as a society. Well, I think after this course, you will be more skeptical.

It’s difficult and costly to measure effectiveness. And when ineffectiveness is found, agencies are not happy about that. So that that’s why we have a Government Accountability Office that commonly will look at the behavior of agencies and whether or not the statute is achieving the Congressionally mandated intent. Our law system is highly specialized in the sciences, and it often takes scientific training at a graduate level in order to be able to debate about the appropriateness of certain standards. Similarly, if you’re arguing about the effect of human development on endangered species habitat, it takes expertise and biology, often at the graduate level, to get a seat at the table. So think about that. If you’re considering a future in environmental management of one sort or another, think about how you might shore up your technical capacity.

It’s highly centralized in decision-making. It’s really difficult in order to participate in decision making at the federal level of government. There are action channels and there are groups of people that are well known to the regulators that play a disproportionate role in making choices that have a much more highly distributed effect.

So I’m not going to go through all these different kinds of decision standards, but we’ve touched on a variety of different approaches to setting standards in different laws. Remember the federal Insecticide, Fungicide, and Rodenticide Act at the top here. It was a risk-benefit balancing law. Think about the Food, Drug and Cosmetic Act as it applies to drugs. That’s a risk-risk tradeoff law. So that a doctor prescribes the drug to you because the doctor thinks that although there may be a risk of a side effect, that the benefit to you is higher, it’s more significant than the side effect risk. Cost-benefit analysis is another form of decision-making analysis that is often demanded in environmental law. Risk ceilings, acceptable risk levels. I’ve seen acceptable risk levels for cancer-causing agents in the environment that vary between one excess cancer is allowable per thousand people exposed as opposed to a standard that would allow, a California standard, one excess risk in a million people exposed. And I’ve seen other proposals for one in ten million. So that the idea of acceptable risk is quite variable, and it can have an enormous effect on the allowable concentration of a compound out there in the environment.

The sustainable yield definition, there’s the Multiple-Use and Sustainable Yield Act that applies to the U.S. Forest Service. And this is a really interesting idea as well. But it’s technical. So that one would have to look at a national forest and figure out how much timber it normally produces, how much could be harvested without adversely affecting the sustained yield at that level. So being able to identify the sustained yield and to develop an understanding of how you go into an area and you get the timber out without depleting the soil resources say of organic matter, water holding capacity, that’s a technical issue.

Density restrictions, land use segregation, disclosure and transparency requirements, certification requirements inside the Food Production Act. The reasonable certainty of no harm standard in the Food Quality Protection Act is the most rigid health protective standard that we’ve got in the United States. It’s as health protective as any statute also in the European Union.

And also technological feasibility. So what’s feasible now as opposed to technology forcing standards that would demand that industry say, lower their auto emissions down to a level that’s not possible now, but you give them a ceiling and say that you’ve got five years to reach that reduced ceiling. Restricting false claims of benefit or demanding expression of risk, so product labeling. And then restoration standards that exist inside the Resource Conservation and Recovery Act and the Superfund law. So that there are different forms of standards, different decision making criteria and analyses across these laws.

I wanted to compare for just a couple of minutes some key principles of law. So I just said that U.S. law has evolved incrementally in a patchwork quilt fashion with a variety of these different standards that were in the last slide. How about European law? Well, European law evolved based upon a collection of principles, principles that are not embedded in all of our laws. So we have no law in our country that basically forces the statute to comply with principles such as exist in the EU law. One is a high level of protection is demanded, but not the highest. And this would force the definition of what high means, and it has and it’s produced litigation. The precautionary principle that despite uncertainty in the effect of timber harvesting on endangered species habitat or of a chemical on human health, despite the uncertainty, it is a better idea to be precautionary, to set a standard that would be protective. And this is quite similar to another principal that they call the prevention principle, that prevention is better than the cure.

And they also have the source principle, that a problem should be managed at its source, rather than down the road. So you know, if you have a nasty pesticide, are you going to manage that pesticide by allowing farmers to use it and then going out and monitoring its presence in the water supply or in the foods that you eat? That’s managing at the downstream level, as opposed to at the source. So nip it in the bud. If it’s a really dangerous chemical, prohibit it or don’t allow it to be used under certain circumstances.

The polluter pays principle that dictates that polluters are financially responsible for the pollution that they emit from their smokestacks, from their pipe, their waterline discharge points, and that they are also responsible for damages. And they’re responsible for coming up to solutions to the problem that they’re creating. And also, that they are open to liability claims.

And finally, the safeguard principle that member states in the European Union have the authority to adopt tougher laws given their particular conditions. Now, when I say that, I know that these seem like they’re kind of dry principles. But when I say that, the bell that should be going off in your head is a bell about preemption and how important it is to think carefully about when, under what circumstance do you want to preempt a lower level of government, say France, from adopting a tougher level of regulation than the European Union? Or when do you want to have California be given the authority to adopt tougher air quality regs as opposed to those that are established by EPA? So that the safeguard principle cuts across all European law that gives the member nations the authority to set standards that are tougher than the Union’s.

Chapter 4. Poverty, Wealth and the Environment; Narrative Advantage [00:35:34]

I want to talk just a couple of minutes about poverty and the environment. And we haven’t spent much time on that during the course. But the impoverished in the world generally face degraded environmental conditions compared to the more wealthy. And these are often ignored by governments. Exposures to hazards are normally higher. The poorest are left to the most marginal lands. It’s kind of interesting to watch what happens in a town, even in Connecticut, when developers have built on all of the really nice lands, and then you have the old down dump, the landfill, that nobody wanted to live near and remained undeveloped. But as the towns reach build out, meaning that all the other lands have been developed to the zoning density limit, then increasingly, you see lower income people moving into those areas.

There was the Bhopal, India chemical release back in 1984 that killed tens of thousands of people and injured hundreds of thousands of others. Those people had basically migrated next to the chemical company and set up camps that made them immediately adjacent to the edge of the chemical company. And that history, I encourage you to take a look at it. The chemical release of methyl isocyanate killed or injured people in a matter of several hours because they were so close to the plant, there was no buffer zone to it. So the poor tend not to have access to capital. They tend not to have insurance. They tend not to have the capacity to understand and to manage risk the way that the wealthy do. Healthcare surveillance is something that they cannot afford. And litigation is rarely an opportunity.

So as you think about the relationship between environmental problems and the fascination and the drive that our nation has to grow, to produce more, to consume more, to become wealthier, I want you to think more carefully about this. I want you to think about whether or not this fascination with growth, of bigger is better, really is something that we need to confront more directly. The ethical effects of pursuing more, more wealth, really have a variety of dimensions. So that as you think about your own behavior, your own pattern of consumption, if you think about whether or not you really need that next iPod, the next iPhone, or the next iPhone app. If you think about the kinds of foods you want to buy in the marketplace and you start thinking about these as ethical choices and about how they may cause a distributional pattern of costs and benefits out in ways that may not be easily identified.

So as wealth increases, the opposite argument might go, so do the following. Control over modes of production, control over labor and providing labor with certain rights that they might not have had so wealthier nations tend to have higher protective standards for labor. They have higher standards for the control of materials. There’s another mode of production, component of the mode of production, as well as regulations on the use of capital. And the wealthier nations in the world also have more control and accountability that’s demanded of government. They have higher education, higher capacity to identify risk. And as wealth increases, environmental controls, regulations become more sophisticated, as does the capacity to buy insurance, access to health care, and the capacity to select risks and avoid them.

So one idea, thinking about whether or not there is a trickle-down effect. So as the world becomes wealthier, as the high income nations become wealthier, is there going to be a trickle-down effect, or should we systematically think about how we might redistribute wealth, knowledge, authority and a sense of a collective ethic? And will this be a stairway to improved environmental quality and human health?

I wanted to just mention too, and emphasize this idea once more of narrative advantage and how critical it is, given the scale of money that’s being put into advertising. So half a trillion dollars per year in the world going into advertising, promoting products, promoting economic growth and making claims about product benefits and normally not fully disclosing what product risks or product long-term damages might be. We talked on many occasions in the course about the idea of ignorance as being an underlying source for environmental problems. So I don’t mean ignorance in a demeaning way at all. I don’t mean it to infer the absence of capacity. I mean it to infer the absence of knowledge or the incapacity to develop that knowledge but for no reason of personal problem, personal incapacity.

So what are the underlying sources? Well, illiteracy is clearly one of them. Secrecy is another, deception is another, privacy is another, language barriers. But I’m increasingly fascinated by the idea that legal control of knowledge in the form of trade secrecy and classified information are really critical targets that we need to manage more effectively in order to create a literate society that might be able to participate in markets as well as in government decision-making in ways that will lead us to a more health protective, environmentally responsible future.

So secrecy has a very insidious and negative effect. And we’ve seen it in a variety of cases. It concentrates knowledge among those with authority and power. It actually is a form of social control. So if I have knowledge and I withhold for you because it basically will prevent you from being able to compete with me, then that basically is a form of — its authority, it’s power for me to be able to control you. Secrecy inhibits public intelligence, and it enhances the persuasive power of elites, again providing narrative advantage.

Throughout the course, across all of these cases, I have mentioned the importance of looking at distributional effects and avoiding what I call here the veil of averages. If you allow yourself to be convinced of arguments based upon statistical claims of the effect on average is going to be X, or even the benefits on average are going to be Y, then you should not do that. You should think much more carefully and deeply about distributional patterns in society. How is risk distributed? How are benefits distributed? Is there an overlap among the risks and the benefits? Do we want to structure law in a way that encourages that to be transparent and overlapped?

Chapter 5. Key to Success: A Few Reflections [00:43:16]

So I’m going to close here, and I’m going to just take a little bit of license, and I apologize for this, because you may think of me as being paternal. But this class represents, I believe, a class where I’ve now taught about 2,500 Yale students. And this has given me a perspective on the success of my students as I watch them down the road. What careers they take, how they come back and want recommendations. But also want to let me know that they’re taking some ideas into their future.

So what advice could I give you? Well, I would encourage you to think really carefully about what drives you morally. What are your dominant moral values? And I’ve got kids your age. I say that to them, “Give me your top five dominant moral values. And learn to understand how those values might guide your behaviors.” And in my life, I’ve often concluded that boy, if I’d just listened to that inner voice that would have told me what the right thing to do was and it would have been a better decision. So learn to trust your instincts about what’s really important in your life. It’s not just about getting richer. Learn yourself and then teach others. You’re at one of the most prestigious and one of the best educational institutions in the world and it’s just such an incredible privilege for you to be here. But I think now about it, the educational experience that you’re getting, not in my course, but in better courses, as a privilege, as something that really you have an obligation to carry on, to expand the knowledge of other people.

Lead by example. Don’t just tell people what to do. People see you being focused and disciplined and taking on the toughest and meanest and nastiest and dirtiest jobs, they’re going to respect that and they’re going to follow you. So focus and discipline is really a key to success. I would encourage you to reduce your access, your reliance on electronic media. I see students walking down the road holding their cell phones in front of them, no conversations at all. I mean, the value of conversation is enormous compared to the value of communication via electronic media. Body language, understanding how emotion and rationality are mixed up in language. You don’t get that from Twitter, you don’t get that from emailing people. So I’d encourage you to think carefully about the amount of time that you spend your life in that way.

I worry a lot about what’s going to happen in future generations because of the way that your generation and those younger are spending their time. Not going out, not experiencing the wild, not experiencing the natural. I mean, I can’t imagine that people would have the passion to care about the wild and the natural or the pure, the chemical free, if they had not experienced it themselves. And that’s the reason that I take my classes out to the Adirondacks. Or I’ve taken them to Wyoming or to other places, because many people just don’t have that experience. They were not lucky enough to have the experience I had when I was a kid.

Consume what you need. Think really carefully about what you need. And how much space do you need? My argument with Kroon Hall, how much cubic feet of space do you really need per person in Kroon Hall as I look up at that forty-foot high ceiling. Yes, it’s grand. Architecturally, it’s a wonderful esthetic experience. But in the new age of being concerned about energy consumption and renewables, is that a luxury that we can really afford?

Know what you’re consuming. If anything, you should walk away from this course being skeptical about this issue. It’s hard to do. What’s in your environment? What do you need to protect yourself against? Drive less. Self-propel yourself more. It’s not only good for the climate, it’s great for your health. You’ll remember the design of that Centers for Disease Control building, specifically designed with that staircase that is beautiful. A beautiful staircase with light glass panes going up the side of the stairwell that encourages everybody to get to their office up on the seventh or eighth floor by walking up the steps as opposed to taking the elevator that’s in the back of the building.

Become politically active regardless of your party. Show up. It’s really pretty remarkable, and I hesitate to say this in a class where I know a bunch of you have not shown up all the time. But a lot of success is involved in the social relationships that you develop just by showing up and paying attention. You know, I have thought long and hard whether or not I wanted to adopt Harvard Law School’s prohibition of the use of laptops in the classroom, and I’ve decided not to do that. So I mean, I figure that if I can’t engage you in a lecture, and if I regulate your use of laptop, then I shouldn’t regulate it. But I also feel that those of you that are not paying attention, you know, there are probably some pretty good reasons for it.

And the most important lesson I think I have for you is to be confident about yourself. And I want you to think about this one really carefully because my belief is really that you wouldn’t be here at Yale if you did not have the capacity to change the world. Now, you know how many Yale leaders have had enormous influence in corporations, in government, in the nonprofit community. So that capacity, it’s an enormous gift. And I’ll leave you with one final reflection is that you may think it’s really hard to induce change in the world, but it’s not. It’s really not. If you demonstrate your passion, you develop the knowledge, you develop a coalition, you can make change at any level of government. So be confident about yourself and go in peace. So thank you very much for a great term.

[end of transcript]

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