Professor Jason Czarnezki: New York Rules

When Dr. Barry Commoner inaugurated the Gilbert and Sarah Kerlin Professor of Law lecture series, he began by speaking about New York City and how its population slowly changed the pollution practices of the city. He related the story of how he and a small band of lawyers, community organizers and citizens stood athwart the medical waste incineration practices that released un-quantified amounts and unnamed dioxins into the atmosphere, which accumulated in milk, dairy and meat products. While Dr. Commoner delivered his address in Fall of 1999, 14 years later his discussion of slow progress shaping New York City is not far from the heart of the new Gilbert and Sarah Kerlin Professor of Law, Professor Jason Czarnezki.

Professor Czarnezki is newly arrived at Pace University School of Law after four years at Vermont Law School, where he was the director of the U.S.-China Partnership for Environmental Law and a fellow in Land Use and Agriculture and Food Systems. A graduate of the University of Chicago and the University of Chicago Law School, Professor Czarnezski studied in Sweden and, later, in China as a J. William Fulbright Scholar. He is well respected, written and published in the areas of Land Use, Food and Agriculture Policy and Environmental Law, generally.

Professor Czarnezki’s first Kerlin Lecture focused, in the history of Kerlin lectures, once again on the power of people. In his September 25 lecture, he considered the daily choices we make, and the impact those choices have on the environment; the challenges of regulating those decisions; and, using New York as a focal point of analysis, considering how effective past policies have been on changing behaviors.

While daily choices, he conceded, are largely local, “pollution sources and public health concerns remain domestic and increasingly localized.” In fact, he argued that this very local, very powerful phenomenon has long escaped the attention of academics focused instead on the increasing internationalization of environmental norms. He suggested, instead of looking solely at large scale governmental and industrial reform, that we question how we live, where we live, and what we eat.

Professor Czarnezki posited 5 categories of regulations to modify behavior. The first category, information generation, is largely “top down.” He cited federal programs like Energy Star energy efficient labeling, the Toxic Release Inventory program and the U.S. Department of Agriculture’s National Organic Program, mechanisms by which the government changes behavior by encouraging individuals to think more about their individual choices. The second category, health effects and technology-based standards, encompassed technological and industrial solutions to pollution. The third category was the imposition of bans. Citing the varied success of programs such as plastic bag bans, he suggested bans are made more effective when preceded by community education. Professor Czarnezki focused on his New York study on the fourth and fifth category – market based regulation and infrastructure modifications.

The New York City case studies split into two categories – transportation and food, each with a successful and an unsuccessful project. The first transportation case study invoked the “infrastructure modification” category through the implementation of the CitiBike program – a program that placed 6,000 bikes in 330 stations around New York City. Though whittled down from 10,000 bikes in 600 stations, the program added 100 miles of bike lanes throughout the city. Local groups concerned with the use of corporate logos near historical sites and the risk of noise pollution were initially hostile to the idea. Despite this initially cold reception, the program has since received a 74% approval rating. The failed congestion pricing policy, to be funded through the U.S. Department of Transportation, is in direct contrast to the bike initiative. The idea to tax people entering lower Manhattan during peak hours suffered from an initially cold reception that never thawed. Despite exemptions for the elderly and certain entrances, despite decreasing the size of the price-restricted areas, and despite the anticipated $400 million revenue stream expected from the project, fears of congestion in the non-price restricted areas ultimately carried the day and defeating the program.

The posting of calories and the ban on sugary drinks comprised the second set of studies. The Affordable Care Act’s calorie-posting project, similar to the CitiBike initiative, was a passive program that, while initially criticized as being an imposition on industry, was ultimately embraced. Requiring venues with more than 20 locations nation wide to post calories for their food offerings, the program is now 99% popular. Its efficacy, however, is unclear. In contrast, New York’s sugary drink ban went the way of congestion pricing. Initially rejected as an expansion of the “nanny state” and mired in political and social debate about how far the state’s hand should extend, the program was ultimately declared “arbitrary and capricious;” this decision was affirmed on appeal.

Questions after the lecture ranged from criticisms that an overly specific focus on the individual immunizes the state from criticism to questions regarding the efficacy of changing state reliance on large and potentially dirty technologies. Taking these in stride (and quite excited to learn more about New York), Professor Czarnezki clarified that a focus on the individual is not mutually exclusive with a focus on the individual.

Professor Czarnezki concluded that while people dislike taxes and bans, infrastructure changes, exempt from the general failings of the slow process of “nudging” usually taken by the government, can lead to significant change. Indeed, the professor concluded that New York is a test tube for such experiments and is and should continue to be a national norms leader for local change.

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