Kagan to environmentalists: “You can’t have it be penguins versus people.”

On the evening of December 15, about a dozen local scholars who work the expansive area where law and public policy overlap met in a Boston College Law School lounge for pad thai and cookies and a conversation with Robert Kagan, the University of California, Berkeley, law professor best known for Adversarial Legalism, a 2003 book about American litigiousness. Sponsored by the University’s new Clough Center for the Study of Constitutional Democracy, the 95-minute discussion with Kagan was one of four meetings of the Public Law Colloquium that the center will offer this year, each spotlighting a research undertaking.

The session focused not on the fractious American legal system, but on a subject that sounded stunningly dry by comparison: environmental regulation of the trucking industry. The format for the evening, and for evenings to come, was simple: a brief recap of an already circulated paper, followed by challenges to the main points, expressions of countervailing views, and suggestions of alternative policy prescriptions.

Speaking without notes to listeners seated in an ellipse of wooden armchairs and leather couches, Kagan said that while environmental regulation has succeeded brilliantly in some industries—take paper manufacturing, the subject of an earlier Kagan study—progress has been slow in others, such as trucking. Federal regulation of large trucks, Kagan told the group, has focused on improving engine design, but diesel engines can last a million miles, meaning that old trucks will be around to expel toxic nitrogen oxides and particulate matter for many years before being consigned to the junkyard. In his paper, Kagan notes that 38,000 trucks built in 1990 or before remained registered in Texas in 2006. The paper also draws data from Califor-nia, where the state’s Air Resources Board has made diesel emissions a focus and where it is estimated that 3,000 deaths per year result from the running of diesel-fueled engines. Why not write a federal regulation, then, requiring truckers to gradually replace their old equipment with newer, “cleaner” models? It’s a reasonable question, Kagan said, yet no such regulation has been seriously considered.

According to Kagan, politicians’ reluctance to mandate the use of newer trucks owes a lot to the structure of the trucking industry, in which many small firms compete for a limited amount of work, resulting in slim profit margins, lack of access to capital, and little chance of passing new costs to the customer. As he argues in his paper, “Legislators simply shied away from imposing a regulatory obligation that was so costly for small truckers.”

Kagan ended his presentation by pointing out that his findings on paper mills and trucking overturn the prevailing academic wisdom. Specifically, his research refutes the view that it is industries such as paper manufacturing, with big, politically influential companies, that have most successfully avoided regulation.

True to the intent of the colloquium, Kagan’s 25-minute presentation unleashed 70 minutes of debate and discussion from attendees, who, in addition to representing Boston College and BC Law, hailed from Harvard, Clark, Brandeis, and Northeastern universities, UMass-Lowell, and Wellesley and Stonehill colleges.

Early on in the discussion, Boston College law professor Daniel Kanstroom cited the case of commercial fishing, where regulations have indeed driven small operations out of business, amid considerable public unhappiness. Maybe Kagan was wrong in his explanation of how trucking regulation came to be ineffectual, suggested Kanstroom. Could it be instead that environmentalists, typically the main spur to environmental legislation, have lacked a sufficiently dramatic awareness of the health problems caused by diesel-powered trucks?

Getting truckers to update their fleets ought to seem like “low-hanging fruit” to environmental activists, agreed Wellesley College political scientist Tom Burke. Many long-established regulations, he said, save far fewer lives than would be saved by updating trucking fleets.

Environmentalists, countered Kagan, face much the same pressures as legislators do. They “know if they drive a lot of [small truckers] out of business, they’re not going to be very popular,” he said. “You can’t have it be penguins versus people.”

Leaving aside the early deaths it would prevent, said Boston College’s Hillary Thompson, a graduate student in political science, updating diesel trucks would yield dramatic savings for Medicare and Medicaid—maybe even enough that government could justify, in dollars and cents, buying new trucks for the trucking firms.

“There’s been lots and lots of talk that the benefits would far outweigh the costs,” admitted Kagan. “It’s a problem of up-front costs,” he said—in other words, new trucks would have to be paid for today while the savings on health care would come many years hence.

At length the discussion took a more hopeful note, turning to the growth of environmental awareness beyond the green community. Remarked Boston College law professor Zygmunt Plater, “I saw a judge turn down 30 years of his own precedents because his grandchildren said it was an environmental case.” What’s more, large industrial companies typically employ environmental officers, said Kagan. These personnel “become advocates,” he noted, “sort of a shadow regulatory force within the firm. That is an important development.”

Along with the professors and graduate students, an interested and largely silent observer attended the colloquium: Chuck Clough ’64, a University Trustee, sat taking notes. Last summer, Clough, with his wife, Gloria, MS’96, donated $10 million to endow the Clough Center, of which the colloquium is designed to be but one of several programs.

According to director Kenneth Kersch, the Clough Center will sponsor courses and occasional conferences; academic prizes and fellowships; student internships in government; an undergraduate journal; scholars in residence and visiting professors; and a joint law degree and political science doctorate meant for individuals seeking careers as instructors of constitutional law. “I’m also working on making the center genuinely interdisciplinary,” said Kersch, a political science professor who has been meeting with colleagues in economics, history, classics, education, and social work to discuss how the center might incorporate their perspectives.

Asked about the center’s raison d’être, colloquium member R. Shep Melnick, a Boston College political scientist, said, “One of the big difficulties in both political science and the study of law is how to avoid getting lost in details.” The center, Melnick said, will aim at getting scholars “to raise the broader questions facing Western democracies.”

Getting democracies to work right is hard, added Kersch, and the center’s efforts are intended to help “deepen our understanding of this task, which is ultimately about creating the conditions for human flourishing.”

As for the Public Law Colloquium, the center’s first program to be up and running, Wellesley’s Tom Burke, who has attended both of the new group’s meetings, said, “We have a large number of law and court scholars in the Boston area, but until this colloquium was developed, we were scattered and had only infrequent contact with each other. The Clough Center is creating a community where none existed.”

David Reich is a writer in the Boston area.

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