When an owner of capital invests in their ‘home’ state, this investment is governed by national law. But when an investor exports their capital, a whole extra body of law supplements, and sometimes supplants, these domestic arrangements. This is international investment law (IIL): the vast body of investment agreements; arbitral decisions; and other forms of hard and soft law that protect the rights of foreign investors in ‘host’ states. Flynn and Lawrence critique IIL from a material constitutionalist perspective, revealing an order bound up with the history of imperialist expansion; the inscription of the rights of the investor class as general and international; and a desire to protect capital and markets from state interference. IIL is currently undergoing a ‘constitutional crisis’, but though reforms may improve certain serious flaws, material constitutionalist analysis reveals inherent features that cannot be reformed without fundamental reconfiguration of the material relations between international capital and state constitutional orders.

Introduction

Unit IV highlights the vital connection between environmental problemsolving and democratic decision-making. While individual consumers and citizens can certainly make environmental improvements on their own (e.g., by recycling household waste or reducing their personal carbon footprint), most environmental problem-solving requires collective action—either by whole communities, whole countries or even all the nations of the world acting together. Unfortunately, it is not easy to generate agreement at any of these levels. Stakeholders often start with conflicting philosophies. Additionally, a high likelihood that any proposed solution will affect them differently. Since self-interest is an important motivation, some way of resolving these underlying conflicts and making sure that multiple interests are met simultaneously must be found.

Groups with different interests often define problems in ways that reflect their biases. They see what they want to see and hear what they expect to hear. They advocate methods of analysis that will yield results that support the outcomes they favor. This brings us back to the claim we made at the outset of this book: environmental problem-solving will inevitably involve both science and politics. It requires science, because a popular agreement that does not actually solve a problem is of little use. It requires politics, because almost all collective action requires some form of effective government involvement.

The chapter begins with an excerpt from Breaking Robert's Rules. In it, Lawrence Susskind and Jeffrey Cruikshank advocate for a consensus-building approach to mediating conflicting interests. Although consensus building is oftentimes more time and resource intensive, the authors argue that it is more likely to lead to fairer, wiser, more efficient and more stable outcomes. In other words, they advocate for a more democratic and inclusive approach to decision-making.

Ian Shapiro's excerpt summarizes what political philosophers know about collective decision-making in democratic settings. He also discusses whether citizens have a right to participate in decisions that affect them. You will see that we hold to the belief that majority rule, the usual way in which citizens make decisions in a democracy, is not good enough. We would rather see contending groups attempt to reach agreement whenever they engage in environmental problem-solving. Why should they not try? The worst case is that they fall back to majority rule.

Environmental problem-solving is at the heart of every decision about allocating natural resources and crafting standards to protect public health and safety. Elected and appointed officials make problem-solving choices every day that affect their constituents’ lives, but they cannot ensure that everyone gets what they want and need. Environmental problem-solving involves trade-offs. Sometimes policy makers make decisions that respond to immediate pressures but that sacrifice the interests of future generations. Often, they respond to pressures from some groups but not others. In other words, environmental problem-solving almost always turns out to be harder than it first appears.

For one thing, there are likely to be competing diagnoses of what is causing the environmental problem. In the case of air or water pollution, for example, there may be differences in view about its causes and about how great a threat it poses. In addition, there are sure to be conflicting notions about how best to respond. Is the level of pollution a serious threat to long-term ecosystem survival? Is it a threat to everybody or only to a vulnerable subset of the population? Will it eventually dissipate of its own accord? Or will it continue to get worse, eventually reaching a tipping point where remedial action is no longer possible? Is the effect of the pollution the same everywhere or only in certain locations? Is there a new (pollution control) technology coming along that might render the pollution harmless? Or do we need to ban a particular industrial process until we come up with a less risky way of doing things? What is the likely cost if we do nothing? Who will bear that cost? Do we have to compensate those who have already been adversely affected? Where should responsibility rest for making sure that future pollution levels are safe? How should pollution control measures be enforced? What is a reasonable amount to spend to eliminate or reduce pollution? What funds should be invested in research and development to increase our understanding of pollution risks and the likely effectiveness of alternative cleanup methods?

Introduction

This unit introduces some of the best-known tools and methods for analyzing the prospective and actual effects of alternative policies or proposed solutions to environmental problems. These include environmental impact assessment, cost-benefit analysis, ecosystem services analysis, risk assessment, computerbased simulation and modeling, and scenario planning. Tools like these are aimed at reducing uncertainty and ensuring that decision makers and stakeholders have the information they need to participate effectively in resource allocation and environmental problem-solving.

We know that the way risks are framed can have a decisive impact on the outcome of public policy-making and environmental problem-solving. The more serious people think the risks are, the more inclined they are to support whatever actions are proposed. In the same way, we know that efforts to spell out the economic costs associated with policy alternatives and solutions will quickly shape the trajectory of debates and discussion in the public eye. Fairly frequently, findings associated with sophisticated analyses tend to be appropriated by different parties to support their side, often in tandem with other political arguments. There are other occasions, however, where a balanced result prevails. The unit begins with an excerpt by Lawrence Susskind, Ravi K. Jain and Andrew O. Martyniuk, in which they highlight successful examples of sound environmental studies and demonstrate how they have been used to inform better environmental policies for a wider set of stakeholders.

The readings that follow highlight some of the judgments that can influence the findings of an environmental study. For example, if the goal of a solution to an environmental problem is to maximize public benefits and minimize public costs (in the way we discussed in Unit II), then how such benefits and costs are measured is crucial. Environmental impact assessments (EIAs), required by law in many countries prior to designs or policies being enacted, are meant to ensure that the advantages and disadvantages of certain projects or policy options are considered.

Arwin van Buuren and Sibout Nooteboom similarly emphasize the importance of including stakeholders in the EIA process from the beginning and of conducting the EIA before action is taken.

Introduction

In this first section, we examine how national governments formulate and implement environmental policies. Fairly frequently, environmental problemsolving, whether at the project, municipal, regional or state level, requires us to work within, against or toward improving a specific policy. When that is the case, it is crucial to know how (and have the tools) to impact the policymaking process. There is a great deal of published work on the subject of public policy-making in general, but our focus is on environmental policymaking in particular. We are especially interested in how practitioners and citizens can analyze environmental problems and affect environmental policy change.

The Steven Cohen excerpt sets the stage by providing an overview of environmental policy-making from both a theoretical and a practical perspective. Cohen explains why every effort to “solve” an environmental problem is fundamentally a values issue (i.e., “right” versus “wrong”); a political issue (i.e., in which winners and losers are selected); a science and technology issue (where uncertainty and innovation are up for discussion); a policy design and economics issue (i.e., in which regulatory strategies and incentives for changing consumer, corporate and citizen behavior must be selected); and a management issue (i.e., where organizational capacity probably needs to be enhanced). In other words, Cohen draws attention to the inherent challenge of environmental policy-making when there are so many factors to consider.

Michael Howlett, M. Ramesh and Anthony Perl take this discussion a step further, exploring numerous theories of policy design that explain how public agendas are set, policy is formed and decisions are made and implemented. They provide one of the most concise and clear descriptions of different models of policy-making. As you read through this excerpt, think about your own opportunity to influence environmental policy-making. If we think of policy-making as a linear process (as is described in the “textbook” model of policy-making), the process starts with agenda setting before going into policy formulation, decision-making, implementation and evaluation. Different actors have more influence at different stages of the policy-making process. For example, those involved in the first stage—agenda setting—define the problem, thereby largely shaping the nature of the policy.

Questions

1. The city has made a commitment to incorporate potential climate risks into its review of all proposed projects in the areas of the city prone to flooding. Along these lines, it has received a grant of $250,000 from a local foundation to underwrite the work of a “blue ribbon” science advisory committee to advise the city over the next 12 months on how to ensure that climate risks are managed appropriately in low-lying areas. A number of activist groups in the city are not included on the blue ribbon committee, even though they have been working for several years to promote more ambitious climate adaptation policies. They feel they should be given a leadership role in formulating the city's Flood Risk Management and Climate Adaptation Plan. In response, the mayor has announced that he will hold four “town hall meetings”—one every two months—in different locations to ensure that all groups have a chance to present their ideas on “flood risk management.” He has also promised to hire a professional polling firm to undertake a scientific poll of public opinion on flood risk and climate adaptation. He will use the results of the poll and the town hall meetings to inform the work of his science advisory committee. Drawing upon what we have covered in this book, write a 250–to–500-word editorial or op-ed that will be published in the local newspaper either supporting or challenging the city's public engagement strategy on this issue.

2. Habitat conservation is important, especially in ecologically significant areas. Five years ago, the state government initiated a river restoration strategy and allocated substantial funding and professional staff to support its work. The focus of this initiative has been almost entirely on the larger rivers that run through the state and support all kinds of ecological, commercial and residential activities in the surrounding watershed. Your environmental management firm has been asked by the state legislature to organize an assessment of the river restoration program. Even before you collect any scientific evidence, you need to think about the structure of your evaluation. What kinds of things should you be trying to measure? Why? What approaches to data gathering and analysis will you use? What problems or difficulties do you anticipate? How will you try to handle them?

Some environmental problem-solving books appear to suggest that the only thing you need in order to solve an environmental problem is the right tool or method. By now you realize we do not accept that premise. Environmental Impact Assessments (EIA), for example, can be used to help decision makers, including stakeholders, think about the advantages and disadvantages of alternative designs, technologies or locations (and they should!), but a final decision about whether to proceed with a project and whether the unavoidable adverse impacts should be accepted, is a political choice, not a technical one. And, in almost every case, there are sure to be disagreements among groups who favor or oppose various versions of the project or policy being considered. They can use cost-benefit analysis to justify their positions, but, as we discussed in Unit III, many of the decisions related to the design of the tool are subjective and the results of a CBA will not be definitive.

Philosophical or, more appropriately, ethical, considerations will always come into play. And, while elected and appointed officials, or the courts if it comes to that, will have the final say in a democracy, there is almost always room for informal consultation with a wide range of stakeholder groups prior to the government making a final decision. Our view is that environmental problem-solving requires finding a balance between science and politics and debating the ethical choices involved. This is best accomplished through open public deliberation. The credibility of the judgments that emerge also depends on transparency and accountability. That is, the officials and experts involved need to make explicit the information and analyses they are relying on. The stakeholders and the general public need to take advantage of the opportunities offered to challenge the technical basis for government (or industry) decision-making.

Both process and outcome are important. Since there are no “correct” answers, the decisions that officials make (on behalf of the public) must be justified. All possible justifications are rooted in philosophical or ethical assumptions about the role and responsibility of citizens to each other, our responsibilities for the maintenance of a functioning ecosystem, and our responsibilities to future generations. Each person offering a “solution” needs to explain why they have taken the position they have, and what interests they have at stake. In the process, they will reveal their personal theory of practice.

Introduction

All environmental problem solvers, whether public officials or not, have to make ethical assumptions. These are usually informed by basic philosophical beliefs about what is right and what is wrong. Discussions of environmental ethics usually lead to a cascade of follow-up inquiries that often dominate environmental policy-making and problem-solving: What is the proper relationship between humans and the environment? Do humans have a moral obligation to protect the environment? How can such an obligation be reconciled with our need to survive and our desire to prosper?

The inherent conflict posed by these questions constitutes what philosophers call an ethical dilemma. Multiple answers are available depending on the lens we rely on. For example, on one side are those who think in purely utilitarian terms (i.e., the instrumental value of the environment). They believe that humans can and should do whatever will enable them to derive the most benefit or satisfaction from the environment. An alternative view is that humans have a responsibility to serve as stewards of the natural environment (i.e., the intrinsic value of environment). This group of thinkers believes we should do whatever we can to protect the environment. We do not presume to know which choices are correct, but we are convinced that all environmental problem-solving needs to confront them.

From our standpoint, three other ethical dilemmas are equally compelling: (1) Should knowledge derived through the application of formal scientific methods outweigh local or indigenous knowledge when it comes to decisions about natural resource management? (2) Should economic concerns outweigh long-term sustainability of depletable natural resources and ecosystem services? And, finally, (3) Should we err on the side of precaution when there is uncertainty about the possible effects of proposed human actions, or should we have confidence that human ingenuity (and technological innovation) will enable us to repair any damage our actions might cause?

This unit illuminates a range of arguments on all sides of these dilemmas, from advocates of “deep ecology,” who believe that “reverence for life determines who we are,” to “pragmatists,” who believe that “the satisfaction of human preferences should be the overriding goal of public policy.”