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Abstract:
This book chapter argues that just as smokestack industry causes harm to the environment, so information-based businesses create injuries to personal privacy. This analogy can teach us much about how to protect privacy in the information age.

The chapter begins by identifying the information economy's impacts on privacy. It discusses the ways in which an individual's personal information gets used or shared without her knowledge or full consent, thereby damaging her informational privacy. It further explains how spam invades personal (virtual) space and so constitutes another form of privacy harm.

Having identified these injuries to privacy, the chapter then shows that they are conceptually related to environmental damage. It argues that two of the theoretical constructs that have been used to understand environmental harm - the negative externality, and the tragedy of the commons - can also shed light on the impairment of personal privacy. In both contexts, the offending business often does not have to bear the cost of the harm that it is creating. The injuries accordingly qualify as "negative externalities." In both, this can ultimately result in the industry destroying the very resource on which it itself depends - a classic "tragedy of the commons." Environmental damage may arise primarily from smokestack industry, and privacy injuries from information-based businesses, but they share a common conceptual structure.

If privacy injuries are analogous to environmental harm might the solutions, too, be related? Can environmental law and policy, with its decades of experience, serve as a model for the nascent field of privacy regulation? The second part of the chapter explores these questions. It focuses on three, cutting-edge environmental policy tools: environmental covenants, environmental management systems and emission fees. It argues that environmental covenants and environmental management systems could be employed to protect personal information. An emission fee approach could be used to change the incentives, and so the behavior, of those who emit spam. These environmental regulatory strategies can provide constructive models for privacy protection.

Privacy, spam, information, data, environment, environmental law, environmental policy, externality, tragedy of the commons, environmental covenant, environmental management system, emission fee

Abstract:
Driven by global competition, American manufacturing is undergoing a fundamental transformation from mass production to flexible or lean production. Mass production is premised on the stable, high-volume manufacture of identical goods. Flexible production engages all workers in a system-wide search for continuous improvement. It is characterized by constant innovation and rapid change to products and processes. Intel Corporation, a flexible producer, averages forty-five process changes per year.

This article begins by identifying two implications of this industrial shift for environmental law and policy, particularly the Clean Air Act (CAA). First, flexible production's continuous improvement culture provides an ideal platform for pollution prevention and should enable facilities adopting it to achieve improved environmental performance. Second, the rapid change that characterizes the new production method is in tension with Clean Air Act provisions, originally designed for mass production plants, that require facilities to complete a months-long permitting process prior to undertaking each individual change.

The article argues that major recent environmental policy initiatives can be understood, in part, as early attempts to adapt the regulatory system to the new conditions of flexible production. Experimental Clinton Administration programs replaced traditional permitting with plantwide emission caps. These innovative permits allowed flexible production facilities to make changes without delay, so long as their overall air emissions remained within the limit. The programs set the cap at a level more stringent than that which traditional permitting would have required, thereby both providing flexible producers with regulatory speed and pushing them to achieve better performance. Recent Bush Administration rules also offer plantwide caps. However, they do not require more stringent performance and may, in fact, allow pollution increases. They fail to capitalize on flexible production's green potential.

While the Clinton Administration initiatives represent a better approach, they are far from perfect. The article spells out specific legal and policy recommendations that would strengthen this approach and so point the way towards an effective regulatory strategy for the coming era of flexible production.

Environment, Environmental Law, Environmental Policy, Manufacturing, Lean Manufacturing, Lean Production, Flexible Production, Mass Production, Pollution Prevention, Clean Air Act, New Source Review, Reinvention

Abstract:
This article explores ecosystem service trading. To date, most of the literature on this topic has focused on programs in which those who purchase rights to ecosystems use them to replace other, damaged ecosystems. An example would be the Wetlands Mitigation Banking Program, about which much as been written. This article will focus on a less noticed category of ecosystem service trades in which those who purchase rights to ecosystem services use these services to replace pollution reduction technology. The leading example is the Kyoto Protocol's Clean Development Mechanism (CDM). Under this program, those who expand or restore forests, and so sequester carbon, generate carbon reduction credits. They then sell these credits to regulated parties who can use them, rather than pollution reduction technology, to comply with Kyoto requirements. Here, the ecosystem service takes the place of technology-based reductions.

The article will describe the CDM and will examine the heated policy debate over this young program. Drawing on the CDM example, it will show that trading systems in which ecosystems services take the place of pollution reduction technology are fundamentally different than those in which one ecosystem service simply replaces another. The article will develop a new analytical framework for evaluating the risks and benefits of this less discussed, yet highly significant, category of ecosystem service trading programs.

ecosystems, ecosystem services, forests, trading, emissions trading, carbon trading, greenhouse gas, climate change, global warming, kyoto protocol, clean development mechanism,

Abstract:
The Information Economy produces a host of new injuries to personal privacy. These include damage from data mining, data spills, identity theft, the tracking of online activity, and spam. Policymakers are currently searching for a framework with which to think about the governance of these pressing problems.

This article argues that environmental law can serve as a useful model. Environmental law is promising for two reasons. First, privacy injuries and environmental damage share a common conceptual structure. Both are negative externalities. Moreover, in the absence of regulation, both will produce a tragedy of the commons - privacy injuries will create such a tragedy in the online environment, while environmental damage will produce one in the natural world. These structural similarities suggest that environmental policy has been dealing with problems that are comparable to those that privacy regulation now faces, and so may be an appropriate model for it.

Second, environmental law and policy has been the focal point of a decades-long, highly productive discussion about governance. The intensity of this debate, and the regulatory innovations that it has produced, have made environmental policy the hub of creative thinking about regulation. The article identifies four contemporary regulatory strategies, pioneered in the environmental field, that could serve as particularly good models for privacy regulation. They are: emission fees, pollution transfer and release registries, regulatory covenants, and government support for environmental management systems. The article describes each of these environmental policies in some detail. It then explains how policymakers might productively adapt them for use in protecting privacy. The author initially discussed these ideas in a brief book chapter that he posted on SSRN. This article explores the topic in far greater depth than that earlier publication.

privacy, spam, information, data, data mining, identity theft, data spill, technology, Internet, online privacy, environment, environmental law, environmental policy, externality, tragedy of the commons, environmental covenant, environmental management system, emission fee

Abstract:
In 1995, the Environmental Protection Agency introduced Project XL, its lead regulatory reinvention initiative. At the time, the agency explained that the program would experiment with new regulatory methods and, in addition, would promote common sense approaches to environmental problems. This Article begins by demonstrating that, as implemented, these two objectives are quite distinct. Some XL projects, properly labeled "experimental," test out fundamentally new regulatory strategies. Others, the "special case" projects, address specific situations where regulations break down and fail to make sense. The commentary on Project XL, much of it critical, has focused on the program's experimental dimension. This Article examines the special case side. It draws on the theory of the special case, a set of ideas developed in jurisprudence and case law, to argue that this aspect of the program could play an important role in sustaining the environmental regulatory system.

The theory of the special case posits that those who draft rules generally cannot foresee all their applications. Most rules will accordingly result in a small number of regulatory bad fits that cause great and unintended hardship, inequity or inefficiency. Administrative officials must be given authority to make exceptions in these special cases and to substitute a more tailored set of requirements. Otherwise, the bad fits will engender such resentment that they may undermine public support for the regulatory system as a whole. This Article argues that EPA is engaging in this type of regulatory tailoring in the XL special case projects. Like any other system of general rules, environmental regulations inevitably yield some unintended bad fits. These are often held up as "evidence" that the entire environmental regulatory system defies common sense. Project XL's special case dimension functions as a regulatory safety valve that alleviates the pressure generated by bad fits and thereby shores up the system as a whole. This is the untold success story of Project XL.

The Article recommends that EPA expand Project XL's special case dimension so that it can more fully serve its safety valve function. By contrast, it suggests that the agency narrow the experimental side to better focus on a core set of promising innovations, and that it run this aspect of the program more like a true experiment with intensive monitoring, evaluation and public participation. Doing so would address many of the principal criticisms of Project XL and would allow the both the experimental and special case sides of the program to achieve their full potential.

environment, Environmental Protection Agency, EPA, Project XL, special case, regulation, reinvention

Abstract:
One of the few books to focus on practice as opposed to pure substantive issues, this book provides environmental law teachers with a new resource for imparting practical skills. The authors have drawn on their wide experience as environmental law professors and practitioners to develop realistic exercises that teach the craft of environmental lawyering. Readers will learn how to bring a federal enforcement action against a polluter; negotiate a Superfund settlement; prepare documents and strategy for a citizen's suit; counsel a corporation on environmental compliance; and comment on an EPA rule making, as well as many other relevant skills.

Environmental Practice is comprehensive in scope. It contains problems and exercises under each of the major environmental statues. In addition, it places readers in the three key roles played by environmental lawyers--government attorney, corporate counsel, and public interest advocate--and provides practice pointers for each of these types of work. The book makes extensive use of original documents such as the Code of Federal Regulations (CFR), regulatory preambles and agency guidance, exposing students to the materials that environmental lawyers use most.