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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — September 2019


Zero-Sum Climate and Energy Politics Under the Trump Administration

by Melissa Powers

The concept of “zero-sum” derives from economics and game theory, but its political meaning is less technical and objective. In political parlance, zero-sum has come to stand for the idea that there will be winners and losers in every transaction. The Trump Administration has continually espoused zero-sum ideas about energy and the climate, although its zero-sum framing focuses more generally on pitting fossil fuels (winners) against clean energy (losers). This Article, adapted from Chapter 10 of Beyond Zero-Sum Environmentalism (ELI Press 2019), explores whether the Administration’s zerosum politics will pose long-term damage to the United States by undermining competitive energy markets, locking in fossil fuel infrastructure, and further polarizing climate and energy politics in the United States. The Article concludes with potential strategies that states, local governments, and private actors can pursue to ensure that decarbonization will provide the greatest good for the greatest numbers, while ensuring that fossil fuels lose in the end.

Competitive Federalism: Environmental Governance as a Zero-Sum Game

by Shannon Roesler

When the major pollution control laws were passed in the 1970s, there was growing consensus that federal environmental regulations were essential to the protection of human health and the environment. At that time, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations to attract industry and economic growth. Political support for new federal environmental regulation has since changed, with many states challenging such regulations as abuses of federal power. This has turned environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if the rule stands, the state loses. This Article, adapted from Chapter 9 of Beyond Zero-Sum Environmentalism (ELI Press 2019), investigates this recent turn to competitive federalism in the context of anti-pollution regulation. It concludes that despite the zero-sum rhetoric that pits environmental protection against economic growth, there is growing evidence that people do not view environmental protection and economic well-being in zero-sum terms.

Energy Policy: No Place for Zero-Sum Thinking

by Inara Scott

In game theory, “zero-sum” means that a person may gain only at the expense of another person losing. Two-person games, such as chess and checkers, exemplify this win/loss dichotomy. Transported to economics, the idea of zero-sum similarly means that one party must lose for another to win. But in broad, multi-faceted policy contexts, such as the evolution of the energy industry in the United States, this winner/loser paradigm is particularly unhelpful and can lead to short-sighted and dangerous consequences. This Article, adapted from Chapter 3 of Beyond Zero-Sum Environmentalism (ELI Press 2019), recommends moving away from the zero-sum analogy to advance energy policies that benefit people across geographic, socioeconomic, and cultural divides, and offers concrete suggestions to ground policy development in a broader, more holistic manner.


The Deteriorating Arctic and the Impact of the Shipping Industry

by Harsha Pisupati and Armin Rosencranz

Over the past three decades, Arctic sea ice has declined by more than 95%, paving the way for increased shipping activity along sea routes that were previously passable only by powerful icebreakers. This increased shipping activity has the potential to adversely impact marine life, increase local pollution levels, speed up the melting of ice sheets, and severely damage the Arctic ecosystem. This Comment (1) discusses the impact of the shipping industry on climate change, with a special focus on the Arctic region; (2) explores the various international environmental law principles that aim to minimize environmental degradation and their applicability to the Arctic; (3) discusses various international agreements that are specifically drafted to deal with the environmental impact caused by the shipping industry; and (4) offers possible solutions to deal with the deteriorating condition of the Arctic.

Using Indirect Regulation to Reduce Environmental Damage From Farming

by Edwin Kisiel

Scientists have found that the planet is hurtling toward a mass extinction of insects. Insects are necessary from an agricultural standpoint because they are the pollinators that farmers need in order to grow crops. However, pesticide and fertilizer (agrochemical) use is a significant factor in the steep decline of insect populations. Farmers are famously resistant to regulation, and agrochemical use is a largely unregulated area. However, farms contribute a significant amount of air and water pollution, especially through agrochemical use. Programs such as “Swampbuster” and “Sodbuster” have been very effective at curbing the decline of highly erodible land and wetlands. These programs use indirect regulation to accomplish their purpose by conditioning receipt of subsidies on not developing highly erodible soil or wetlands. The success of the Swampbuster and Sodbuster programs shows that the most effective way to regulate farms to reduce agrochemical use and support pollinator populations would also be through indirect regulation. This Comment proposes conditioning farmers’ receipt of subsidies on their compliance with new regulations on agrochemical uses as well as mitigation measures.


“Waters of the United States” and the Future of Wetlands Protection

by Hannah Keating, Amanda Waters, Joel Gerwein, Greg Sutter, and Angela Waupochick

Federal jurisdiction over wetlands was muddied by the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, a fractured 4-1-4 ruling with no clear majority. The Trump Administration is relying on Justice Scalia’s plurality opinion as the basis for amending the regulatory “waters of the United States” (WOTUS) definition, which could remove federal protections for many wetlands currently regulated under the Clean Water Act. States and localities are struggling with how to update and clarify their own wetland-related regulations in light of these everevolving developments. On May 7, 2019, ELI hosted an expert panel that explored the implications of Rapanos and the proposed new WOTUS rule for the future of wetlands. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.