• Selected
• Entire List

Abstract:
This paper, a distillation of findings from the NYU Global Administrative Law Research Project, considers the emergence and the need for further development of administrative law mechanisms to promote greater accountability in decisionmaking and rulemaking in the rapidly proliferating variety of global regulatory structures. These include formal international organizations (such as the WTO, the Security Council, World Bank, the Climate Change regime, etc), informal intergovernmental networks of domestic regulatory officials (such as the Basel Committee of national bank regulators), domestic authorities implementing global regulatory law, hybrid public-private and purely private transnational regulatory regimes. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and occasionally NGOs. These regimes and subjects, we argue, are part of a single global administrative space distinct from the domains of international law and domestic administrative law. We define global administrative law as the principles, procedures, and review mechanisms that are emerging to govern decisionmaking and regulatory rulemaking by these bodies. We identify a number of structural mechanisms that have arisen to develop and apply global administrative law, including domestic courts and legislatures reviewing domestic implementation of global standards and national officials' participation in global administrative decisions, and new mechanisms developed at the global level for governance of international and transnational regulatory bodies. We examine the sources and content of the various doctrinal principles and requirements that have been developed and enforced by these mechanisms (such as transparency, participation, reasoned decisionmaking, review, and substantive standards such as proportionality), and their sources. We next consider the normative foundations of global administrative law, including intra-regime control, liberal notions of protection of the rights of individuals and of economic actors, protection of the rights of states, and securing democracy with respect to global regulation. We examine these normative foundations in relation to three conceptions of international ordering - pluralist, solidarist, and cosmopolitan - and in relation to North-South differences. We then consider different strategies for constructing global administrative law, including bottom-up approaches that seek to extend domestic administrative law to global regulatory decisions and top-down approaches that develop new administrative law mechanisms at the global level. We also examine the positive political theory of global administrative law. We conclude that the field of global administrative law is an important emerging phenomenon, distinct from international law and from domestic administrative law, that deserves systematic study and development.

Administrative Law

Abstract:
This Article examines the potential for drawing on U.S. administrative law in the development of a global administrative law to secure greater accountability for the growing exercise of regulatory authority by international or transnational governmental decision-makers in a wide variety of fields. It discusses how U.S. administrative law and practice might form one useful point of departure for developing both "top down" and "bottom up" approaches for understanding and further developing global administrative law. A global administrative law must, of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as sources in international law. Accordingly, the U.S.-based perspective offered in this Article is only one of many that must be considered.

Administrative Law

Abstract:
The current U.S. system of nuclear waste law and policy is bankrupt. Twenty years after the designation by Congress of Yucca Mountain as the only potential site for a deep geologic repository to receive spent nuclear fuel and high level waste from reprocessing, the proposed Yucca repository remains mired in controversy and unremitting opposition by Nevada. There is no prospect for an alternative repository or for the development of a federal consolidated storage facility. The volume of these wastes already exceeds the current maximum storage capacity set by Congress for Yucca and continues to grow. This article first provides a brief overview of nuclear wastes and a summary history of federal nuclear waste law and policy to date. It then diagnoses the major failures in the current design and proposes a suite of new measures to launch a comprehensive new approach, including a reconsideration of the ethical principles underlying the drive for immediate waste burial; the creation of a high-level National Waste Management Commission; the creation of two new federal entities to manage nuclear wastes and to site waste storage facilities and repositories; the elimination of Environmental Protection Agency regulatory authority over these activities; the adoption of a thoroughgoing risk-based approach to waste regulation and management; and the adoption of new, more flexible and adaptable strategies for siting storage and disposal facilities.

Abstract:
Preventing risks of severe damage from climate change not only requires deep cuts in developed country greenhouse gas emissions, but also enormous amounts of public and private investment to limit emissions while promoting low-carbon growth in developing countries. While attention has focused on emissions limitations commitments and architectures, the crucial issue of what must be done to mobilize and govern the necessary financial resources has received too little consideration. This paper attempts to present a succinct overview of the emerging field of climate finance by defining the legal, political and economic issues and outlining the leading proposals for financial, regulatory, and governance mechanisms to fund climate change mitigation, and low-carbon development. We argue that effective mitigation of climate change will depend on a complex mix of public funds, private investment though carbon markets, and structured incentives that leave room for developing country innovations. This will require sophisticated national and global regulation of cap-and-trade and offset markets, forest and energy policy, international development funding, international trade law, and coordinated tax policy.

climate change, climate finance, climate change economics, development, mitigation, adaptation, development assistance, carbon markets, carbon trading, international law, international environmental law

Abstract:
This essay serves as an introduction to the Breaking the Logjam project, a joint undertaking of New York Law School and NYU School of Law to propose concrete and comprehensive reforms to federal environmental laws. It discusses the impetus for the project and the four guiding principles for environmental reform around which it was organized: (1) supplementing traditional hierarchical regulatory approaches with market and property-rights-like mechanisms, such as cap and trade and information disclosure, whenever these tools can reliably achieve environmental objectives; (2) realigning authority so that the federal government has responsibility for national and transnational environmental problems, and states and their subdivisions have responsibility for essentially local ones; (3) openly facing trade-offs in decision-making and ensuring that decisions are made on the basis of reliable information; and (4) approaching regulatory problems in a cross-cutting way that addresses underlying problems. The article then goes on to give brief synopses of Project articles published in the January 2009 issue of the NYU Environmental Law Journal, most of which were presented at the Breaking the Logjam Symposium held at NYU in March 2008.

Abstract:
Although environmental regulatory agencies have endorsed widespread use of mitigation measures and reviewing courts have upheld its use, agencies and courts have failed to provide a legal rationale for using mitigation in lieu of the technology-based or other controls provided in regulatory statutes. Some environmental advocates have attacked the use of mitigation as unlawful and appropriate. This article seeks to resolve the controversy and legal uncertainty over mitigation by providing a general theory of the legality and appropriateness of using mitigation measures to satisfy environmental regulatory requirements.

Mitigation measures reduce or eliminate the adverse environmental effects imposed by pollution sources, development projects, and other regulated activities by enhancing the environmental resources subject to the stresses that such activities impose or by providing substitute resources. Examples of mitigation measures include wetlands and habitat restoration, acquisition and preservation, emissions and effluent trading, and fish stocking, fish ladders, and construction of artificial reefs. The article concludes that the use of such mitigation measures in lieu of stressor-based regulatory controls is lawful and appropriate if the mitigation measures achieve the applicable statutory criterion of protection for the environmental resource in question (for example, to "minimize adverse environmental impact"), and use of mitigation is not precluded by the statute. The mere failure of the statute to explicitly authorize or mention mitigation does not preclude its use in cases where mitigation measures can satisfy regulatory objectives and their performance can be effectively monitored and enforced. The article also argues that NEPA and "wholesale" application of Chevron deference to the widespread use of mitigation by federal regulatory agencies provide affirmative legal authority for use of mitigation, notwithstanding the failure of a relevant statute to mention mitigation. Under this test, some statutory provisions, such as the Clean Water Act provisions for technology-based effluent limitations, preclude use of mitigation, but most do not. The article uses this conceptual framework to analyze the use of mitigation under Section 316 of the Clean Water Act (which deals with point source thermal discharges and cooling water intakes), Section 404 of the Clean Water Act (wetlands regulation), the Endangered Species Act, the emissions and effluent trading programs adopted by EPA under the Clean Air Act and the Clean Water Act, NEPA, and a variety of other federal and state environmental statutes. It concludes that the use of mitigation is lawful and appropriate for implementing many environmental regulatory statutes, and that EPA should endorse this conclusion in its pending Section 316(b) Clean Water Act rulemaking in the specific context of regulation of cooling water intakes.