By Tom Still
MADISON – If California can have the “Terminator” as its governor, then perhaps Wisconsin can have the “Deregulator” as its chief executive.
At last week’s Wisconsin Economic Summit, Gov. Jim Doyle repeated his pledge to rid the state of cumbersome permit processes that cost time, money and jobs. The Republican-controlled Legislature, while still suspicious that Doyle is a late convert to purging Wisconsin of red tape, is no less passionate on the subject. Republican lawmakers have introduced a job creation plan built around straightening the regulatory maze.
As the Capitol debate rages, some of the most creative thinking about regulatory reform may be taking place inside the belly of the beast: the state Department of Natural Resources. Secretary Scott Hassett, a Doyle appointee, is pushing to replace the “command-and-control” model that has dominated environmental law for decades with a system that emphasizes progress over process. It is a sea change in thinking that could transform the DNR – and enhance Wisconsin’s environmental quality.
In a recent speech to the State Bar of Wisconsin, Hassett called for an end to the “adversarial legalism” that has defined environmental regulation since the 1960s and replacing it with an “aspirational legalism” that sets goals for environmental performance by businesses and others. It was a call to move beyond the regulatory culture of setting minimum standards to a more cooperative platform of managing environmental outcomes.
“Simply put, businesses will have the flexibility to pursue goals they set with DNR and the community,” Hassett said. “Regulatory reform is not about what we do to each other. It is about what we will do together ﾅ We will not only think about the compliance minimum – the adversarial way – but about the potential for environmental greatness – the aspirational way.”
In aligning himself with new environmental thinkers nationwide, Hassett was careful not to disparage the fact that “adversarial legalism” – known less affectionately as “nanny environmentalism” – had its day. The political environmentalism of the past 30 to 40 years was born out of necessity. Business-as-usual was not protecting the air, water and land; there were grievous examples of pollution crossing local and state borders, which invited action by Congress and federal regulators. The Clean Air, Clean Water and Waste Management Acts and the creation of the Environmental Protection Agency were among Washington’s responses.
The regulatory actions of the 1960s and ’70s were welcomed as medicine to help cure a throwaway society. Even in a nation blessed with natural resources, it was time to stop throwing and start conserving. The natural human tendency to overdo a good thing – if one pill works, let’s take four; if a gallon of fertilizer helps, let’s dump 10 – had reached an illogical limit. Alarmed by dirty water and foul air, people realized the time was right for environmental activism. The first Earth Day on April 22, 1970, the brainchild of then-U.S. Gaylord Nelson, a Democrat and conservationist from Wisconsin, was a public expression that citizens should be at the core of bringing about a cleaner world.
Over the decades, the cure became something of its own disease. What began as a check on environmental abuses grew into a command-and-control system that inhibited innovation and technological progress and created a widening gulf between people and the natural world that includes those people. The state became an environmental nanny, constantly wagging a scolding finger but rarely encouraging or teaching anyone to do better.
The regulatory system that exists today is disconnected from how the rest of the world works. In art, music, science, commerce, sports or just about any other human endeavor, the goal is continuous improvement. In nanny environmentalism, the goal is compliance with minimum standards rather than striving for measurable gains. The tools are punitive rather than based on incentives. Bullying is part of the process. Partnership is viewed as a race to the bottom rather than a way to lift everyone’s performance. Success is measured like a traffic cop working under a ticket quota – how many fines have we levied, how many non-compliance notices have we mailed out?
Hassett’s efforts to change the DNR will not go unopposed. Some bureaucrats within the agency believe the old way is best. Many, but not all, environmental groups prefer top-down regulation to community-based efforts.
Change is inevitable, however. The old way will not bring about environmental progress, only environmental maintenance – and at a cost to the economy and taxpayers that will prove unsustainable. The new way, whether it’s called “civic environmentalism” or “aspirational legalism” or “hands-on environmentalism,” will create a cleaner and more productive world. It’s reassuring to know there is substance behind the debate – and that it’s coming from a Cabinet secretary who believes in change.
Still is president of the Wisconsin Technology Council and is the former associate editor of the Wisconsin State Journal.