Articles, Etc.

KANE HALL - 5/24/99

Greetings, friends, and Law School faculty and friends. Thank you, Dean Hjorth for those charitable words, and my thanks to the Law School for its institutional kindness. Attaching my name to a chair gives me pleasure, and this brief connection to the name of the illustrious Professor Rodgers is an honor.

The Law School is to be applauded for causing environmental law to be taught, studied and learned. Like any branch of public policy, environmental policy can't attain its purposes unless it becomes embedded in the fabric of the law and applied by members of the legal system who have mastered the subject.

What you're about to hear from me won't fit the title that was provided you after I had adopted it in a fit of presumptuous carelessness. My power to compress expression proved inadequate to squeeze into the allotted time anything about either the process of making environmental policy or of matters relating to such policy for cities. That leaves the Wilderness. [But the following restores what was cut out for the speech.]

To address the subject, it's well to state the scope of what we mean by environmental policy. So many practices and policies affect the environment that it is easy to go too far. Once I read a book entitled "Propaganda" by a French intellectual, and by the end it appeared that almost every human expression - broadcasts, whispers in secret, body language - fell within his definition, leaving the term with little utility. We must, of course, include all the commonly accepted areas: air and water quality, natural beauties, all flora, all the creatures that Noah brought aboard, plus the fish. I'll arbitrarily include land use and growth management but stop short of population controls.

And another definition, the City and the Wilderness. Let's make a crude and largely arbitrary division between what can be classed as urban surroundings and natural ones. Use a boundary that divides the two, without a zone between. So the City includes suburbs and towns, and the primary constellation of interests and subjects concerns the air and water we consume, the air we smell, the noise that distracts or annoys us, the obstructions to our view, the distance between places of work and sleep, the litter beneath our feet. Wilderness extends to all beyond.

Among those environmental problems that face us - whether or not we face them - the functional aspects are those we should feel confident that we can solve. For example, pollution of air and water, litter, filth and stink. These conditions have largely been produced by our technology. In turn, our technology has largely been produced by our engineers. I think that these problems will be solved by engineers. Engineers make problems and and by and by they solve them; engineers have been solving environmental problems since Roman engineers built the Cloaca Maxima.

For effective environmental policy, accountants have come to be needed, as well as engineers. The growth of cost accounting enables a great increase of economic efficiency, best using our resources to pursue our ends, although it has some adverse effects, such as accelerating the eating speed where meals are dispensed, and book publishers' concentration on prospective block busters.

The more difficult aspect of the problems are those caused by sharp differences of wishes and practices within a large population. Many of these are reconcilable. But this function can't be performed either by engineers or by direct democracy, by a yes-or-no vote on an initiative measure. Reconciliation must be done through the political process. That is, by politicians in a deliberative body, where policy is produced by discussion, debate and compromise through give and take.

Then we have to reconcile ourselves to the intractable fact that many of our environmental policy issues cannot be solved except by compromise. Isaiah Berlin's recorded thought is heavily concentrated on how we humans come up with fundamental ends that not only conflict but are irreconcilable, and that we delude ourselves and each other if we fail to recognize this. The contradiction between quantum mechanics and the general theory of relativity appears more likely to be resolved than conflicts between mercy and justice, liberty and equality, commonwealth and clan.

One type of environmental policy issue fundamentally irreconcilable concerns taste. De gustibus non disputandum est. There are so many aspects of this. For example, the issue of authenticity vs. appearance. Some prefer Potemkin Villages, theme parks, while others prefer structures and treatments of the land that are less pretty and more real.

Some expressions of taste can be enabled without offense, despite their diversity, by keeping them out of sight, in the home or behind a hedge. Others, in places used by the public, by a cover and label, for example, a cover in the form of a wall behind which is a theater, and on which is a label in the form of a sign telling, "Beware, revolting entertainment within." But outside, in sight of all, although differing tastes cannot be reconciled, their abrasive effect can be reduced by zoning, whether by government or by voluntary association.

In the political conflicts over environmental policy there are populists who concentrate on bread-and-butter issues and resent environmentalists as elitist birdwatchers, tree huggers, garden club members. Then there are consumer advocates, like Ralph Nader and a number of labor unions, who ally themselves with protectionist groups to defeat reduction of trade barriers and toward that end use support of environmental protection as a club with which to beat the free traders.

This can be done well only by superior politicians, ones who can make the machinery of government work, who can maintain a sound balance between their two often conflicting duties between the direction shown by their own judgment and the direction demanded by their constituents, between doing what the politician thinks right for the public welfare and doing what their constituents want at that moment.

In turn, to get good politicians depends on citizens. The range of action and interest runs from global warming to neighborhood recycling pickups. Shaw wrote that one of the merits of democracy was that it assures we are governed no better than we deserve. Exasperation with politicans is understandable, but to discard their role would avail us nought. We can have government without politicians, and in the short run quite good government without them, but we cannot have democracy without politicians.

As with many crusades, the environmental movement has been hampered by single-mindedness that leads to passionate unrealism. Some ardent environmentalists seem to detest economics to the point of ignoring it and tend to favor collectivist measures, regarding as evil empires corporations with world wide investments, employees and transactions. Some who are well-fixed seek to make their surroundings a perfumed garden, in disregard of those whose purse does not enable them to heat their homes other than by firewood from a dwindling supply. They do not recognize that environmental protection ranks below a full stomach, a bicycle and some other material things, and that the satisfaction of such material wants is an essential condition to effective environmental protection policies.

Another obstacle to effective environmental policy has been parochialism. At the end of the 19^th Century, Chicago decided to stop the fouling of Lake Michigan by the sewage flowing into it by the Chicago River. Its solution was to reverse the river's course so as to send it, and its contents, down the Mississippi. Such solutions solve the problem only for one area, not for the whole commonwealth. Currently some governmental entities dump trash out in the ocean a few miles, likewise relieving the municipality at the expense of the rest of the earth.

On the other hand, the environmental movement has been assisted by having become politically correct. Also, this movement has been helped along by its current popularity. A few years ago, wandering about on a Mexican volcano named Orizaba, I was

repulsed by the omnipresent litter and reminded of how laws can bring to pass attitudes causing compliance even where out of enforcement range. Our own mountain trails now tend to be gratifyingly free of tin, plastic and paper, even out where one can toss litter with little risk of censure or penalty. Some years ago, an American climbing party that reached a Soviet summit, disgusted to find it resembling a south Bronx vacant lot, themselves cleaned up this long-accumulated trash. This embarassing example induced a change in the Soviet climbers' attitudes and their practices.

Policy for the City is more important than it is for the Wilderness. As Willy Sutton said he chose banks as his robbery targets because that's where the money is, so the City calls for most environmental policy attention because that's where the people are and the greatest interplay between people and their environment. And although there are some for whom policy is to be made for some spiritual abstraction that some people see for our planet,.a substantial proportion of us think the purpose of environmental policy is to benefit some or all of the public. There would be little support for improving air quality on some part of the earth where nobody went.

A lot of the conflicts come between those who differ on what is worth paying for environmental quality. A narrower aspect of that difference concerns the costs of environmental quality vs. other human comforts that some lack - and that are essential if the environment is to be protected. A number of these conflicts concern functions rather than sets of particular people. For example, we can't divide into opposing classes those who drive and those who breathe. The conflicts tend to be intense because much is at stake, but they tend to be resolvable by rational means. One exception to this may be the use of nuclear energy, non-polluting, yet subject to irrational passions by many.

One constructive current trend in policy for some important impairments, is to substitute indirect pressures, through financial carrots and sticks, in place of direct public regulation. An example is cars, driving which reasonably may be required to pay the costs they add to time losses, pollution, road maintenance and so forth. By measures such as fuel taxes and traffic congestion toll pricing, placing the cost of the consequences on those who cause them not only increases social fairness but also can reduce the social costs by reducing car use, and to give more appeal to public transportation, reduce environmental harms, impose lower environmental costs, and enable a faster commute. Politically, of course, making users pay the full cost of the consequences of their use is easier said than done.

One policy that needs more public recognition and support is to encourage high density. It is essential both to make urban life more agreeable and to preserve countryside and wilderness. We must not forget that the whole theory or concept of the City is high density. Much present community public policy and practice encourage low density. This increases the costs of infrastructure, puts jobs far from homes, increases racial segregation and makes public transportation less efficient.

Of course, this high density needs to be attractive, both to get public acceptance and to make the whole worth while. And to be attractive means more than following aesthetic and functional principles of good design. Multiple unit housing - and for high density, you've got to have lots of that - should enable a long range of rent-paying capacity within every block. Insofar as we continue practices that segregate rich from poor, educated from ignorant, socially skilled from socially crippled, we make ourselves an unhealthy city, where in some neighborhoods the socially crippled are left to lead their own. The common phrase is blind leading the blind. Consequences: Extended suburbs, endlessly paving over the green earth.

An interesting current speculation is what will be the extent of home office use and what will be its consequences - more sprawl, spread to high density small towns, cities with high density and few office buildings?

In wilderness policy, compared to the City, cost elements are less important because they are smaller and less precisely measurable. On the other hand, perhaps because the considerations are more aesthetic, and what some people regard as spiritual, not subject to significant cost measurements, emotional or irrational factors often count for more than in the City. A small example is attitudes toward roads, a device convenient for travellers but incompatible with Wilderness. Even though roads impair the nature of the wilderness more than does logging, many lovers of the mountains, earnest citizens, hate logging more than they do roads, and put their efforts into resisting the former, permitting the latter, when their precious wilderness would have its chances to be kept as such improved by helicopter logging, without roads. In both City and Wilderness, of course, non-rational factors take a large place, primarily in the areas of taste and money. Taste can't be resolved by reason, and money, although subject to reason, does generate passion.

Another example, trivial alongside factors of urban smoke, smell and noise, but nonetheless illustrating the irrationality that applies to some of the wilderness issues, is the abhorrence toward rock climbing bolts felt by some climbers and park officials who have bought their sales pitch. Where the nature of a cliff means that a slip means fall to your death, a line of bolts 10' apart up that cliff enables it to be climbed as a challenge of skill, rather than an exercise in irresponsible machismo. To climb a bolted route gives pleasure to many who enjoy that sport. As a mountaineer of average timidity, I've never met a bolt I didn't like. The opposition argument offered is visual pollution. But those who enter the Wilderness for purposes other than climbing more-or-less vertical cliffs unfirmly express indifference to bolts. Reason: Bolts don't stand out, like graffiti, they are not readily noticed, even by those who are looking for them. And they are far less noticeable than trail signs and bridges, which all accept. Those who oppose bolts are a faction of climbers who appear to believe that virility is proved by taking unnecessary risks. The irrationality is accentuated by the fact that those who choose not to protect their climbs with bolts may climb the identical routes without clipping onto the bolts.

Environmental policies for that large portion of the Wilderness that is not pure wilderness largely concern adjustments between groups that represent different interests and tastes. One of the fault lines runs between preservation and exploitation or use intense enough to change the scene as though altered by exploitation. The allocation of uses among users fittingly may be carried out through the give and take of the political process, just as a budget is determined by adjustments between tax levels, schools, highways, prisons.

Some of the Wilderness policy conflicts are between commercial interests, such as salmon v. dams; others are between a commercial interest and a use for pleasure, again dams v. salmon. Some differ radically in tastes, yet share a wish to preserve much wilderness bounty. Ardent pure environmentalists unite with the hooks and bullets crowd to preserve species and sometimes to oppose logging. Some conflicts are singular, such as those between Indian tribes and conservationists over treaty rights to hunt and fish. Survival of a particular species primarily concerns some. Others get their kicks from the overall complex.

Frequent conjunction of a shared policy outlook with a shared social group tends to intensify the policy differences. For example, one rarely finds at the same dinner party sail boaters and jet boaters, or mountaineers and those who prefer snowmobiles, dirt bikes, ATVs, above all, roads; or those who shoot rabbits and those who watch birds, or pheasant hunters and elk hunters, or dry fly fishermen and those who troll for salmon off Duwamish Head or Possession Point. Even divisions among trout fishermen, dry fly vs. salmon eggs (dry fly v. wet fly?) The differences of background and taste are as sharp as those in town between players at a bowling alley and those on a squash court.

Then there are some who do slight harm in others' eyes but who do not appeal to their tastes. For example, those whose hero is the Biblical Nimrod, Noah's great grandson. These guys prove their manhood by killing animals, using devices that enable this with minimal effort and risk, and take tax deductions by declaring a portion of their house to be a wild life museum and storing a portion of their exotic trophies there.

A substantial group - with concentration in rural portions of the Mountain states - is captivated by the compelling romantic myth of the cowboy, the Malboro man - guns, horses, pointed-toe boots, stetsons, lariats, dancing two-step, unfenced range, low rents for grazing flocks and herds on public land. Most intense in this group are the cattle ranchers. Their outlook contrasts with that of the wheat farmers and orchardists. The cattle ranchers' work follows old traditional practices, while the latter tend to be technically educated and practice some science, all of which makes it harder for them to play they are John Wayne living in a Zane Grey novel.

Others are yuppy NIMBYs and trust fund dilettantes who fiercely and self-righteously resist further development once themselves established in their chalets in the foothills.

"Pure" Wilderness, as distinguished from what might be regarded as wilderness only by the proverbial New York tourist, contains three elements: Solitude, nature and beauty. For solitude by itself as well as by oneself, one may lock the bathroom door. For exposure to nature, one may look at the sea and sky from aboard a ship or plane. Solitude plus nature can be found in polar wastes, tropic jungle or the Sinai Peninsula - none beautiful. Solitude plus beauty can be provided by a private room with a work of art or a walled garden. For nature and beauty, one can have the Zugspitze, Lake Louise or the slopes at Aspen. A Japanese garden attempts to provide the three elements, but although it gives beauty, it omits nature. Its ingredients -- a tree, a bush, a pool, a plant, rocks, etc. -- are found in nature, but the garden does not reproduce it because its arrangement is contrived, though each object itself is real. The garden has nature's ingredients but not the mix. Such an experience lacks several elements of natural beauty: the majesty and grandeur of scale, its genuineness and reality, its connection in time with the earth as something permanent and stretching to the past from which we have come.

For the magic to work, not only must all three elements be present, the area must be large. Schmitz Park in West Seattle is filled with true old growth forest, but although a Seattle asset, it's no more Wilderness than a cage in the zoo is a jungle. Squak Mt., on Issaquah's south edge, has a State Park of 600 acres, almost a square mile, and its deed covenants bar any road, structure, vehicle, horse, yet it cannot be a Wilderness -- not big enough and too close to the crowds.

Why does Wilderness appeal to us? Until not long ago it did not. Throughout the world, it was considered not "pure" but "raw." It was detested, regarded as dangerous, uncomfortable and ugly. Three bad things. In an earlier day, with a small population and scarcity economy, dismayed by endless forest, steep and slippery grades, with crude and inefficient equipment to protect one's body from the weather and one's feet from the rough ground, the Wilderness was not as benign as it has become. So it is not hard to see why it has ceased to be abhorred for danger and discomfort (with certain exceptions, of course). But its appearance has not changed, so the shift from ugliness to beauty must have taken place in eyes of beholders. Why that shift?

One cause seems to be reaching a certain level of material comforts. Another a degree of civilization and culture. But there is something more. The cultured Goethe passed through the Alps with his carriage curtains drawn. Some feature of culture, post-Goethe, seems to matter; I can't discern it.

But one clear and convincing element has been awareness that our precious asset was growing scarce. This phenomenon is recent. Some years back, my sister Harriet and I spent a week in Okanogan County, hiking on a circuit through the Pasayten Wilderness, as it's called, and we saw not one human being. This was not some inaccessible fastnesses in the Pickett Range but the rolling Pasayten hills. And earlier, when I was ten, and little Harriet was left at home, crying bitterly, our family and another took a camping trip in the central Cascades. On making camp in the late afternoon, the men would chop down a couple of small pines, from which they would lop the boughs, and we would make them into beds. These cutters of pine-trees were upright men, men who observed the rules or the day, written and unwritten. In those days, the Wilderness seemed inexhaustibly vast, and the users were so few, and their use so seldom, that marks, if left, did not mar the scene for later visitors. But those days are gone. Now we are forbidden to cut up pine trees, and we sleep on thermarest mattresses, distinctly more comfortable, though not aromatic. About 40 years after that journey, our family, as then constituted, visited some of the same places. One was Lyman Lake, near Bonanza and Copper Peaks, where signs told us, "No camping within 200' of the Lake." The place was becoming loved to death and the shore needed a rest.

Another example of sorts. Not quite a half century ago, in reciting over the radio a list of advocated policies and programs as a candidate for Congress, I recommended a chairlift to Camp Muir. No one since ever has mentioned this to me. Perhaps from politeness. Or maybe my prosaic and hesitating delivery had turned off whatever audience there had been before I spoke that egregious remark. Today, of course, that chairlift would not be proposed even by James Watt. However, although in those days when a pole was something for flags or that advertised a barber shop, if an opinion poll had been taken, that Rainier Park improvement might well have gotten a thumbs up.

Now what should be our policy toward our precious Wilderness? It can be preserved as such only by both maintaining the area dedicated to pure Wilderness and restricting the number of users who may enter. A couple of problems. As the lesser one, user limits are meeting resistance, even though it's not thought unjust or autocratic for a publicly-owned theater or sports arena to stop selling tickets when all the seats are filled.

The main rub is fundamental: Only a comparative few want to use it as it is, and keep it as it is, while far more people prefer to use it in ways that would transform it from its wilderness nature. For homes, logging, golf courses, mines, resorts of all kinds, with scenic roads to connect these things. How can retention as such of large wilderness areas be justified as in the public interest? Why should not such a policy be rejected as providing a huge playground for a comparative handful of players?

This preservation policy gratifies two not unhealthy appetites: A powerful hunger by the few direct users and a pervasive need by a multitude, some living and some yet unborn. In terms of the greatest good for the greatest number, the former group is small but the good is large. For the latter, the attachment is less intense but the number large.

First the former. To explain the magnetism of Wilderness to one unhooked by it, is as hard as to explain the pull and the delight of music or heroin to one unfamiliar with those pleasures. The texture under foot, the smells, woods, grass, boulders, waterfalls, snow fields, heather, cliffs of rock and ice, flowers, creeks, jagged skylines, the passage of the sun, bird song, solitude, silence, the magic of the campfire as the sparks fly upward, disappearing in the dark. All that and the challenge to one's own body.

The Wilderness gives this band or clan of users refreshment and satisfaction that correct their perspective and enrich their hearts. For them, the Wilderness is essential to their lives; nothing else will do. Just as experience as a lawyer the last half century has penetrated my soul with both challenge and pleasure, so has a lifetime of roaming the mountains.

The Wilderness draws one with a passion more often fulfilled than frustrated. A passion so strong that for some it's addictive. But the mountaineering drug's bad effects beyond some neglect of responsibilities back home are little more than occasional production of some deplorable writing: Mushy philosophizing about why do we climb, how the mountaineering experience reveals, to these authors at least, the meaning of the universe, life's purpose, God's existence and intentions, and other secrets unknown to those unblessed by revelation. Mallory's throwaway, flippant remark is treated as a profundity.

Then the other interest group for whom environmental policy should preserve the Wilderness: Those who do not use it but wish to know it is there. If not for the disparaging connotations, this group might be referred to as a "silent majority." These folk, their numbers hard to measure, do not enjoy the Wilderness; nor does it restoreth their souls, yet they are given satisfaction from awareness of its existence and availability, knowledge of one place not treated as plasticene, perpetually subject to remodelling.

Its presence reminds us of one aspect of our past. To compare: In Europe, we derive comfort from preserving the cathedrals without any longer subscribing to the doctrines that were their purpose or feeling the astounding inspiration that induced their design and construction. In Egypt, we approve the Pyramids' preservation, although even the locals no longer bow down to dead pharaohs. On the Mediterranean, we cherish the Parthenon, although the gods for which it was built are to no one more than charming myths. In our country, we preserve monuments that symbolize aspects of our nation's ideals and its brief past, and in each city, we preserve buildings, lots of which lack merit of either architectural beauty or historic significance, but nonetheless remind us of the life that was lived here before us. We are pleased to preserve examples of our previous productions of our thought - sundials, armor, spinning wheels - things we no longer use, and we save early books that express ideas that have been superseded as fully as the sundials.

Just as we preserve the relics of what those who came before us have done and made, we need to preserve our Wilderness - which we have not made and cannot. Recalling Tacitus, we have the power to make a desert and, perhaps, to make peace but we cannot make the kind of wilderness we want. Keep it or lose it, our only choice. The Wilderness constitutes a singular and complex museum piece of what life has been on our long-time home. And it's so much more than some museum exhibit or Civil War statue in one of Faulkner's towns. It's alive!

And we preserve it not only for ourselves but also for those who come after us. Our duty to provide for the unborn, a duty derived from our newly-increased power to affect them. In the past, we were too busy scrambling, taking care of the living, to have time to consider mouths that did not yet need to be fed. We lacked our present technology that can destroy the future for the unborn, destroy it not only by erasing our civilization but also by rubbing out that past from which we've come. Now we can touch those who come after us by setting the conditions of their lives in many ways. We no longer are limited to the building or destruction of cities and the setting of good or bad examples of personal conduct.

To save the Wilderness for the unborn does not call for large sacrifice. It's just foregoing some immediate commercial benefit through extractive industry and resorts. It's not like foregoing that round-the-world cruise in order to put enough into one's grandchildren college fund. Energy sources are not as meager as was thought a while ago; many raw materials can be replaced or regrown or recreated after use, but natural beauty can be destroyed and can't be recreated.

To incur cost to provide for posterity calls for far-seeing citizens who will support far-seeing political leaders who will not readily flinch at the rebuke: "Tax us to save beauty for unborn babies?!!". In contrast to measuring how much to add to the gas tax to cover the cost consequences of driving cars, cost accountants are slight help to measure how much to charge the living for benefit of the unborn. How far can political leaders be asked to impose costs, or denial of exploiting and consuming pleasures, on constituents to protect the interests of the unborn, to whom the leader owes no gratitude for election, and whom the leader will never even know?

The Psalmist sang: "I will lift up mine eyes unto the hills, from whence cometh my help." We would like some hills that will still be there the next time we look, not subject to removal like Denny Hill, shovelled into Elliott Bay. Our Wilderness gives a kind of security through a fixed point of reference in a perplexingly mobile world. In a poem referring to our pioneer forebears on their way west, Archibald McLeish wrote: "East were the dead kings and the remembered sepulchres; west was the grass." Now that carpet of grass, endlessly stretching across the prairie, undulating in the breeze, level with the horses' heads, is gone, but mountain wilderness remains. And many people, among the living and the unborn as well, who never enter the mountains, and never will, would be disappointed to learn that we had let the Wilderness go with the grass.