June 17, 2015

It’s been some time since I’ve given much thought to how much power and influence public interested activists and nonprofits have in our regulatory environment.  Then I read Tuesday’s  Globe  and came across an eye opening piece about the Conservation Law Foundation and TDI-New England, a developer that hopes to bring hydropower to the region.

The Conservation Law Foundation is one of the most important environmental advocacy groups in the region.  It was one of many interest groups that emerged in the 1960s and 1970s during the rise of what Richard Harris and Sidney Milkis termed the “public lobby regime.” 

This new regime sought to democratize administrative agencies and regulatory bodies by means of direct citizen action in key areas of social life, including, and perhaps most importantly, environmentalism.   The public lobby regime helped to create new institutional arrangements that allowed for much greater interest representation in regulatory processes than had heretofore been the case.

Harris and Milkis wrote in The Politics of Regulatory Change: “Public lobby organizations were created with the idea in mind of establishing a permanent presence for citizens in the regulator process.  In this sense, these organizations were, themselves, an important institutional arrangement.”

These organizations pioneered the use of citizen suits where parties with an interest in a regulation could impact its development, implementation, and enforcement. Thus did the courts emerge as an important battleground in the administration of environmental regulations.

That brings us back to the rather astounding article in the Globe.  Though the regulatory changes that Harris and Milkis detail were met with strong pushback by the Reagan administration, key features of the institutional arrangements are still with us.

The Conservation Law Foundation’s role in environmental and energy policy is one of them.  Using the tools of the regulatory regime of the 1960s and 70s, CLF has been involved in some of this region’s biggest environmental stories, from the cleanup of Boston Harbor to the passage of tough lead paint laws.

Its status as a seasoned litigator in this space allows CLF to assume powers that at one point might have been viewed as solely within the realm of government institutions. 

The Globe piece detailed the environmental cleanup of Lake Champlain, through which a TDI-New England cable will run:

“TDI-New England said Monday that it would pay $284 million to clean up the lake and promote renewable energy in Vermont in exchange for an agreement from the Conservation Law Foundation not to oppose the project.”

Read the last part of that sentence again.  There was a price for not incurring opposition to a project that will bring electricity to one million homes.

Further into the piece we learn that “Previously, TDI had agreed to contribute more than $160 million to reduce the impact of laying the cable under the lake, which would stir up sediment and have minor effects on underwater life and human uses of the lake.”

Other hydropower projects in New England haven’t been similarly blessed.  Again, from the Globe: “Christopher Kilian, the Vermont office director for the foundation, said Eversource and other developers have taken an ‘adversarial posture’ over environmental concerns. With TDI, however, he said his group’s ‘interests were satisfied.’”

Though Mr. Kilian didn’t intend it as such, it is ironic to use the term adversarial The new social regulations that allow groups like CFL to engage in legal actions and pre suit financial settlements were specifically designed to turn the administration of environmental regulations into court like, adversarial proceedings.

It’s important to note that CLF is one player, albeit an important one, in this example of bringing hydropower to the region.  State regulatory bodies must still weigh in and are ultimately determinative.

But the power of CLF to stymie projects or to direct private resources to projects within its interest area is impressive and implicates issues of representation, government power, and democracy.

The regulatory regime that gives CLF its power continues a decades long trend toward using lawsuits and court proceedings to stymie or spur the actions of corporations and government.  This vision of democratic life and citizen action is no longer new and it remains potent.

Conservation Law Foundation, regulatory politics, TDI New England

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