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Abstract: The prospect of tort litigation against private parties has been gaining increasing attention by lawyers. While only three such cases have been filed thus far, observers (including the organizers of this symposium) clearly expect the number to increase significantly. Indeed, if successful, these and future cases will have a huge impact on the industries sued and, as hopeful lawyers have mused, could make the tobacco litigation look small by comparison. But will these cases succeed? As law students all dutifully learn in their first year Torts class, a prima facie negligence claim must satisfy four elements - duty, breach, causation, and injury. Most discussion and analysis of climate change cases to date have focused on the third and fourth elements of causation and injury. How can plaintiffs persuasively link the particular emissions of cars driven one place with reduced snow pack somewhere else? And, even if a causal link can be established between the offending action and the harm, what is the proper measure of the emitter's liability in the face of multiple sources of greenhouse gases over an extended time period? These are challenging issues, and surely deserve careful attention. What remains surprising, though, is that little beyond passing mention has been written about the first two elements - the duty of care and its breach. Suppose one could establish that emissions from a utility company or an automobile manufacturer's cars proximately caused greater storm surges that, in turn, harmed a particular coastal community, or proximately reduced snow pack and led to water shortages for a specific farming community. Key questions still remain. Did the utility or car manufacturer owe a duty of care to these specific communities? If so, what was the nature of that duty and was it breached? To improve our understanding of the short and long-term potential for climate change tort litigation, this article focuses on the duty of care and its breach. The first section addresses general doctrine. What role does the duty of care play in tort actions? The second section then explores the likely scenarios for tort climate actions, including a summary of the tort-based actions brought thus far. Who are the likely plaintiffs and defendants? How have litigants attempted to satisfy the duty of care elements in climate litigation? The final sections assess the duty of care for a range of tort actions - negligence, product liability, private nuisance and public nuisance - that may in the future form the basis of climate-based claims.
Abstract: Created by the interactions of living organisms with their environment, ecosystem services support our society in many critical ways, from providing clean air and water, decomposing waste, and pollinating flowers, to regulating climate, and pacifying floodwaters. Interest in ecosystem service markets has recently exploded, with a cover article in The Economist just a few months ago. Scholarship in the field, though, is still quite young. Despite their immense practical value, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author's recent experiences establishing a market for water quality in Australia, this Article fully explores the implications of an ecosystem services approach to environmental protection. The piece reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.
ecosystems, environmental, law
Abstract: If one compares environmental trading markets (ETMs), they all seem to share a basic feature--they all exchange commodities that are fungible. A CFC molecule, kilo of herring, or ton of sulfur dioxide seems much the same as another, both in terms of its identity and impact. It's trading apples for apples. Indeed ETMs must assume fungibility--that the things exchanged are sufficiently similar in ways important to the goals of environmental protection and resource allocation efficiency. Otherwise, there would be no assurance that exchanges were equivalent, that trading ensured environmental protection. This core assumption of fungibility, however, turns out to be less obvious and more problematic than first appears.
In this Article we develop a comprehensive analytical framework for evaluating ETMs from the perspective of commodity nonfungibility and explore the challenges that nonfungibilities (trading apples for oranges) present. We argue that in order for ETMs to deliver on their promise of environmental protection, they must satisfy three standards of adequacy. "Instrumental adequacy" involves the choice of "currency" with which we value the traded commodities and carry out the exchange. A perfect ETM currency would accurately reflect ecological and social values and allow us to compare the exchanged commodities regardless of differences across the three dimensions of nonfungibility--type, space, and time. But nonfungibilities are present in almost all ETMs, most strongly in those trading habitat, and the perfect currency becomes simply too expensive to mint given time, knowledge, and financial constraints. Thus ETMs usually resort to using a crude currency--such as counting acres of wetlands--that will surely fail to reflect important values being exchanged or avoid negative externalities.
"Procedural adequacy" refers to ETM trading constraints adopted to compensate for less-than-perfect currencies. For example, if counting acres of wetland fails to account for the services delivered by different types of wetlands, we can restrict the ETM to in-kind trades. Naturally, increasing trading restrictions of type, space, and time decreases the volume of trading. ETMs using crude currencies thus must balance the desire to control externalities with the need to keep the trading market robust, or "fat." Through a case study of the wetland mitigation banking ETM, we demonstrate the inverse relation between currency adequacy and market restriction--i.e., the pressure on ETMs to keep markets fat even when it means sloppy accounting.
Our discussion of "substantive adequacy" explores measures ETMs can take to police themselves when the combination of inadequate currencies and inadequate market procedures leaves the door open to trades that lead to loss of social welfare. We argue that the presence of significant nonfungibilities shifts the model of an ETM from a commodity market to a barter market, where discretion matters. We, therefore, call for use of ex post approval measures, in part to ensure meaningful valuation of the public goods exchanged and in part to counteract the agencies' and trading parties' inherent biases to encourage nonfungible trades. We further argue that it is inappropriate to use the conventional permitting process to carry out habitat trades and explore options for new institutional design of a "permit-plus" system that preserves the efficiency benefits of ETMs, while more clearly acknowledging the inherent costs in trading nonfungible commodities.
Abstract: In this article, we focus on the potential of governmental authorities dedicated to management of ecosystem services. We argue that the creation of such Ecosystem Service Districts (ESDs) will improve the efficient provision of services necessary for human welfare. At the moment, when agencies manage for natural resources, they typically do so in a defined geographical area or district. Given the prevalence and importance of districts for soil conservation, resource conservation, flood control, and other local services, we explain how ESDs could provide a coherent and efficient governmental institution for monitoring and investing in natural capital. A focus on ESDs would create a mechanism to help ensure that natural capital is protected and maintained with the same care and concern as that given to built and human capital. Establishing and managing ESDs will involve an exploration of the underlying ecological processes that provide the services, of the economic significance of the services, and of the legal issues involved in managing natural ecosystems for the good of a local or regional community. Central in all these analyses will be land use decisions. Land use determines which of the initial ecosystems and services are maintained intact. In addition, many of the key trade-offs between the continued functioning of natural ecosystems and the extension of economic activities arise naturally in the context of land-use choices, such as farming versus forestation, development versus conservation, etc. In examining the geographical, economic, and legal obstacles in designing ESDs, we suggest an integrative framework for managing the patterns of land use in a district that can provide several different ecosystem services, and that also has the potential to support many different types of economic activity, some of which can conflict with the continued integrity of the natural ecosystems. Part I of the article explains the why ecosystem services are under threat and the potential benefits of managing their conservation through ESDs. Part II lays out the basic ecological-economic framework and principles for district design. Part III sets out the key legal issues and Part IV presents a tentative roadmap of how to put theory into practice. The importance of ecosystem services is no longer disputed. How to realize more fully their value, and hence their conservation, however, remains an active research area. ESDs, though fraught with challenges, provide a potentially powerful institutional mechanism to address the relative neglect of ecosystem services in public policy by bringing their crucial importance into focus and aiding in their preservation.
Ecosystem services, public goods, natural capital, environment, legal framework, environmental law
Abstract: In the decade since the Corps of Engineers (Corps) and Environmental Protection Agency (EPA) officially blessed wetland mitigation banking for purposes of satisfying mitigation requirements under Section 404 of the Clean Water Act (CWA), the practice has fueled an ongoing debate about its pros and cons. For the most part, however, the debate has focused on the relative advantages and disadvantages of banking programs in terms of administrative efficiency and ecological impact, with little attention being paid to the effects of wetland mitigation banking on people. This article presents the first comprehensive empirical study of the demographics of wetland mitigation banking, revealing what has long been suspected - that banking facilitates the redistribution of wetland resources from urban to rural areas, taking with them the important ecosystem service values wetlands provide to human communities.
After an overview of the economic service values wetlands provide, the structural biases inherent in the wetland mitigation banking program, and the lack of information about the effects of wetland banking in general, we present the results of an empirical study of 24 wetland mitigation banks in Florida accounting for over 95 percent of all bank activity. By comparing the demographic attributes of the area around each bank to the areas around the development projects that purchase mitigation bank credits to satisfy their mitigation requirements, we show that the loss of wetland resources is concentrated in urban areas, whereas the compensatory mitigation provided by wetland banks is concentrated in rural areas, and that the composition of the project area and bank area populations is significantly different. We examine the policy implications of this effect and suggest several steps that can be taken to better understand and respond to its impact on the distribution of ecosystem services associated with wetland resources.
Abstract: From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies; a social resource, access to water reveals much about membership in society; a political resource, the provision of water to citizens can serve important communication purposes; and finally, when scarce, water can become an economic resource. As recent conflicts in developing countries make clear, managing and mediating these many facets of drinking water is no easy matter. Understanding a society's ability to provide clean drinking water to its citizens, examining how it recognizes the different natures of this vital resource, provides a unique prism on the society's organization, equity, and view of itself. In seeking to understand better how societies manage such a critical resource, this article considers three questions. How have different societies thought about drinking water? How have different societies managed access to drinking water? And how have these changed over time? These questions are, of course, interrelated. How we think of water, whether as a sacred gift or a good for sale, both influences and is influenced by how we manage access to drinking water. While not an obvious issue to us in 21st century America, management of drinking water as a resource - who gets it, when they get it, and how much they get - matters a great deal. Written for a symposium celebrating the scholarship of Carol Rose, this article synthesizes research to date from an ongoing book project on the history of drinking water. Using a case study approach, we journey on a wide-ranging geographical and historical tour, briefly exploring drinking water management in societies across five continents, from 5,000 years ago up through today. Along the route, we find that something as seemingly simple as drinking water washes clear a society's views toward the role of government, norms, and the market.
Abstract: In exploring the promotion of labor rights by international governmental institutions, scholars have largely focused on the International Labor Organization, the WTO, and the European Union. In this well trodden field of study, though, another key IGO player has been overlooked, with little scholarly consideration given to the role of the Organization for Economic Cooperation and Development (OECD). Even those who know of the OECD focus on its well-known activities in economic spheres, rarely thinking of its role in relation to social issues, much less to labor rights. While the OECD's reports, recommendations and decisions have been discussed in a wide range of scholarship, remarkably little has been written on the institution itself. This oversight is unfortunate because the OECD has played, and continues to play, an important role outside a purely economic context. This article focuses on the OECD's role in the development of labor rights, but its findings are relevant across the breadth of the OECD's activities, from environmental protection and trade to agriculture and transport policy. It is hoped that exploration of the OECD's role in labor rights will provide a broad foundation for future work on other aspects of the institution, informing research on the operations, capacity, and potential of the OECD. The article has four sections. The first recounts the OECD's history, from its creation as the overseer of the Marshall Plan to its current prominence as global economic analyst, and explains its operations. The second section explores the OECD's influence on development of labor rights, examining the well-known OECD Guidelines for Multinational Enterprises, publications on trade and labor by the Employment, Labor and Social Affairs Directorate, and the events surrounding South Korea's accession to the OECD. Each of these activities, though quite different from one another (and, in combination, very different from other IGOs' activities), provided important spurs to the articulation and development of core labor rights. The third section presents a detailed case study of the failed negotiations at the OECD over the Multilateral Agreement on Investment (MAI). The case study provides insight both into an important event in the march toward globalization and into the role the OECD can meaningfully play in formally linking trade and labor rights. These different empirical analyses combine to inform the institutional analysis in Part IV. In reviewing instances where the OECD has proven most effective and assessing its relative strengths and weaknesses in comparison to competing IGOs, this section draws from international relations scholarship and focuses on the OECD's two distinguishing assets - its role in creating epistemic communities and influence as a conditional agenda-setter. The concluding section considers the future of the OECD, proposing how it can better meet the challenges posed by globalization in a very different world than the one envisaged by the organization's architects over fifty years ago.
OECD, labor rights, multilateral agreement on investment, globalization, international organizations
Abstract: What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose a way the public trust doctrine can be used to achieve a good measure of Sax's vision by working from within the doctrine, not by changing it.
Unlike the outpouring of academic proposals to liberate, expand, and modify the public trust doctrine to fulfill Sax's goals, for purposes of this Article we accept that the doctrine remains bound to its utilitarian origins. Rather than propose expanding the doctrine outside of its traditional boundaries, therefore, we use its core utilitarian purposes as the medium for protecting ecological resources. We employ the concepts of natural capital and ecosystem services to develop the ecological scope of the public trust doctrine from within. Our argument is straightforward: traditional public trust resources often contain natural capital supplying economically valuable ecosystem services to the public; the public's enjoyment of those values is appropriately treated as a use of the trust lands within the meaning of the public trust doctrine; therefore, the restrictions applicable under the public trust doctrine attach to the natural capital found on trust lands. Thus, rather than reshape the public trust doctrine to fit ecological goals, we propose reshaping the way ecological goals are framed to fit the public trust doctrine. This approach both advances Sax's vision and mitigates the concerns other scholars have expressed about stretching the public trust doctrine beyond its traditional scope.
Abstract: Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006. The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common law remedies, public law enforcement regimes, and second generation approaches in energy policy. This article provided the historical and conceptual anchor for the symposium.
Abstract: Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why parties involved in environmental policymaking exhibit such stark bipolarism, we seek to help proponents of pragmatic, inclusive approaches to environmental law and policy overcome the field's tribal dynamics. While many commentators point to the apparently incompatible worldviews of "bean counters" and "tree huggers" as the primary explanation for the lack of a strong middle ground in environmental advocacy, the differences may prove less profound than commonly assumed. After all, like the public at large, bean counters and tree huggers seem to recognize the legitimacy of competing economic and environmental considerations. Thus, rather than simply speaking past one another, disagreement for many advocates seems to be more practical. This usually plays out in contrasting beliefs over the proper manner in which to weigh and compare economic and environmental values, not a dispute concerning the values' existence or their political validity. If this account is accurate, and the divide is less theological than commonly assumed, then space may well exist for some common, pragmatic agreement. In practice, though, these divisions are widened by a number of social dynamics that frustrate effective public deliberation in the environmental policymaking arena. In particular, we examine the influences of (1) group polarization within environmental policymaking communities, (2) entrepreneurial efforts by interest groups to exploit cognitive heuristics and biases among the public, (3) disputes over proper sources of authority for scientific information, and, finally, (4) the possibility of empirical debates subsuming, and consequently obscuring, more fundamental disputes over cultural or social values. These four barriers act together as an effective "policy cutting gate," shunting advocates into one pen or the other and leaving little space in between for effective advocacy of pragmatic, middle approaches to policy problems. As a result, we conclude that eco-pragmatists should concentrate their efforts not at the high-profile level of policy formation but, rather, at the level of policy implementation, where relevant actors are less severely influenced by the social dynamics of the cutting gate. Put differently, the target audience for appeals to eco-pragmatic decisionmaking may well be neither Earth First!, nor the Competitive Enterprise Institute, nor even the general public. Rather, the most fertile terrain for balanced, pragmatic governance likely lies below the advocacy radar screen at the level of administrative implementation of environmental policy.
Abstract: While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush's campaign in 1988, successive administration have pledged to ensure there would be "no net loss" of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have employed a range of policy instruments to slow and reverse wetlands conversion. Through the 1970s and 1980s, the EPA and the Corps relied on prescriptive regulation that discouraged development of wetlands and, even if a permit for wetland filling were granted, required on-site mitigation of destroyed wetlands to ensure no net loss. To defuse the growing political pressure for substantial change to this "404 Permit" process for developing wetlands, however, since the 1990s the agencies and state governments have promoted a market mechanism that seeks to ensure wetlands conservation at minimum economic and political cost. This instrument is known as wetlands mitigation banking (WMB). In WMB, a "bank" of wetlands habitat is created, restored, or preserved and then made available to developers of wetlands habitat who must "buy" habitat mitigation as a condition of government approval for development. This mechanism has also provided a model for endangered species protection and is in the process of being extended to other settings including watershed protection. Given the shift in emphasis from prescriptive regulation to trading, the government's longstanding pursuit of no net loss of wetlands provides a particularly useful case study for comparing the use of regulatory and market instruments for environmental protection. Indeed, WMB provides a rare example of robust trading outside the air pollution context and the trading habitat-based goods raises very different concerns than seen in trading mobile pollutants. Examining the evolution of WMB also forces us to think carefully over how to assess the "success" of a trading program. The traditional measure would likely be efficiency. But one must also consider effectiveness. In this regards, WMB poses two different types of failures - failure of instrument design (a "front-end" problem) and failure of implementation through monitoring and enforcement (a "back-end" problem). As many of the case studies in this book illustrate, performance of WMB depends critically both on institutional design and implementation. Another important measure of success concerns distributional equity. Who wins and who loses from banking? Such concerns are far more difficult to assess as good or bad policy in habitat trading than the traditional "hot spots" of pollutant trading programs. The chapter ends by drawing out key lessons for market-based approaches to watershed protection.
Wetlands, protection, environmental, law
Abstract: Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual's or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with adopted rules, and the public needs information in order to accept the credibility and legitimacy of the regulatory regime. But governance also requires judgment regarding how to manage information itself - how to structure burdens of proof in light of goals such as public safety or promotion of economic growth, how to balance the public's interest in disclosure against competing aims such as national security or the protection of trade secrets, whether to withhold information in the belief that it may actually be harmful to the recipient, and so on. This paper, written as a foreword for the Texas Law Review's symposium issue, "Harnessing the Power of Information for the Next Generation of Environmental Law," provides a model to understand the role of information in environmental law - how it is generated, utilized, and disseminated within regulatory processes. Drawing on the diverse and significant insights of the symposium articles, the paper attempts both to make sense of the role of information in environmental protection and to highlight significant questions and concerns.
Abstract: From Introductory Paragraph: When one thinks of international organizations whose administrative processes legal scholars should understand, the European Union and the World Trade Organization come to mind without a moment's hesitation. A bit later, perhaps, one might also come up with the Montreal Protocol secretariat, Codex Alimentarius, or the International Organization for Standardization. It will probably take a good while before the Organization for Economic Cooperation and Development (OECD) comes to mind. In some respects this is hardly surprising, for the OECD is neither a well-known nor well-studied international organization (and is certainly not known as a lawmaking institution). Located in Paris and best known for its research reports, the OECD has a "secret life" that goes well beyond that of policy analysis. Indeed, a number of its activities influence domestic agency action far more than is generally realized.
Abstract: The article examines administrative law practices at the Organization for Economic Cooperation and Development (OECD) and is being published as part of an issue of Law & Contemporary Problems on global administrative law. While the OECD is neither a well-known nor well-studied international organization (I worked there from 1990-1992), a number of its activities influence domestic agency action far more than is generally realized. It also provides a wonderful example for the study of global administrative law for the simple reason that it is a hybrid organization. Through its many diverse activities, OECD shares aspects of primarily law-making international bodies such as the EU, primarily standard-setting bodies such as the World Health Organization, and primarily data gathering and research organizations such as the UN Conference on Trade and Development. Perhaps surprisingly, there is no uniform administrative law in the OECD. In managing this constellation of activities, the OECD has chosen largely to decentralize its administrative law down to its subject-specific directorates who develop administrative procedures on an ad hoc basis. Thus in studying administrative law at the OECD, one is effectively studying multiple administrative law systems under one roof. Because the OECD does not garner much attention from scholars or the public, The article commences with a description of the OECD, out the basics of the organization's origins, operations, and examples of its range of activities. Four case studies then examine the OECD's multiple roles and how these bear on the development of the organization's administrative law. The cases range from traditional treaty-making, to consensus development of standards, to quasi-judicial review of the actions of multinational enterprises. Each of these examples relies on different types of administrative mechanisms to address the core concerns of transparency, responsiveness and accountability. The final section explores whether administrative law safeguards should apply to OECD activities that, while not lawmaking themselves, exert important influence on domestic lawmaking and underscores why the OECD has adopted a decentralized model of administrative law.
administrative, law
Abstract: When our pollution control statutes were drafted in the 1970s, smokestack sources sat squarely in these laws' regulatory cross hairs. Over the past few decades, however, manufacturing's relative importance has declined while the service sector has ascended to the point where services now dominate America's economy, comprising 75% of GNP and 80% of employment. Yet consideration of services remains almost entirely absent from environmental law and policy scholarship. This article addresses the implications for environmental protection of the service sector's ascent. Commentators have suggested that the ascent of services provides an important path toward sustainable development. Part I of the article examines the phenomenon of deindustrialization, analyzing statistics on employment, productivity, and economic activity over the last three decades to describe the relative fortunes of the service and manufacturing sectors. It also explores the physical implications of these findings and demonstrates two key findings at odds with common wisdom. First, despite the undeniable growth of services in employment and economic activity, manufacturing in America has not declined. Indeed in absolute terms we are manufacturing more than ever before. Second, while there is indirect evidence of an "environmental bonus" from the growth in services and other facets of the information revolution, improvements in material intensity have been offset by increasing levels of economic activity. In fact, a plausible interpretation of the data suggests a counter-thesis, a correlation between the rise of services and increased resource consumption. Part II considers how best to reduce the environmental impacts of specific services, delineating two categories of services with distinct implications for law and policy. "Smokestack services" include operations with large physical plants such as utilities and hospitals that emit significant quantities of air pollutants or solid waste. Traditional strategies for controlling industrial sources of pollution go to the very core of environmental protection but they often match poorly smokestack services. "Cumulative services" such as fast food chains and dentist offices do not cause significant environmental harm at the level of individual operation but collectively have important impacts. They pose the challenge of a nonpoint source world, where the universe of diffuse sources threatens to overwhelm command-and-control regulation. Appropriate regulatory and non-regulatory instruments are analyzed in each category. Part III employs a fundamentally different type of approach, focusing not on the impact of the services themselves but on their ability to reduce environmental impacts throughout product life-cycles. Such "leverage services" act as a funnel through which products, electricity and financing must flow to end users. They raise intriguing possibilities for environmental protection because, while not necessarily causing significant environmental impact in their immediate activities, their commercial links provide a uniquely effective fulcrum to leverage environmental improvements upstream and downstream in the life-cycle. This presents a novel vision of environmental protection, moving from a narrow focus on production and disposal to energizing the web of commercial relationships.
Abstract: In recent years, interest in ecosystem services has exploded. From cover stories in the New York Times and The Economist, websites connecting buyers and sellers of ecosystem services, and the comprehensive UN-sponsored Millennium Assessment - a report on the state of the world's ecosystem services - to a statement by the U.S. Secretary of Agriculture calling for a future where credits for clean water, greenhouse gases, or wetlands can be traded as easily as corn or soybeans, the ecosystem services approach has firmly arrived in the environmental policy world. But what does this approach entail and where is it going? This short article reviews the state of the field. Although critical to our well-being, ecosystem services are neither explicitly protected by the law nor traded in markets. The first section explains the three major obstacles to protection and commodification of ecosystem services. The second section proposes payments for services as an alternative policy approach to the more traditional instruments of prescriptive regulation and financial penalties. The third section briefly describes examples of service payments around the globe, demonstrating the wide range of approaches. The fourth section considers the difficult issues in structuring payments for services, including the challenges of moral hazard, the polluter pays principle, and norm shaping. The final section describes three exciting recent developments - the growing interest of conservation and land trust organizations to integrate ecosystem services into their central missions, the launching of an ecosystem marketplace on the web, and negotiations to incorporate ecosystem service markets explicitly into the 2007 Farm Bill. This article was voted by law professors for inclusion in the 2006 issue of the Land Use and Environmental Law Review.
Abstract: Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so. In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice - who should whittle and which knife they should use. In Part I we argue that the nature of the problem - the stick to be whittled - deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. In Part II, using examples from the fields of environmental and land use law, we develop a model to identify the different attributes of cumulative effects that drive massive problems and how these can distort or undermine policy responses. In Part III we explore the three different strategies currently used in administrative law to manage massive problems, showing each to be deficient. In Part IV we draw from recent scholarship on Dynamic Federalism, New Governance, and Transgovernmental Network theories to propose an effective strategy for agencies to whittle away at massive problems through loosely-linked "weak ties" networks of federal, state, and local agencies. Part V illustrates how this can work in practice, using a case study of water pollution in the Gulf of Mexico. We explore both how such multi-scalar, multi-agency coordination networks function and the challenges they pose for administrative law. The Court's observation is quite correct - agencies, even when working together, can only whittle away at massive problems. This article takes the next step, creating models that explain the challenges posed by different types of massive problems and proposing strategies for engaging in more effective multi-agency coordination.
Abstract: The Mexicans have long been known as the Corn People, but that label perhaps provides a better fit for modern day Americans. The simple seeds of corn play a fundamental role unprecedented in the history of human agriculture. Corn now underpins two major sectors, arguably the two most important sectors, of our modern economy - food supply and energy supply. How we choose to consume this seed has far-ranging consequences for pressing issues as far apart as climate change and diabetes, energy policy and immigration, tropical deforestation and food riots.
Abstract: On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into the mitigation decision-making standards, requiring that "compensatory mitigation...should be located where it is most likely to successfully replace lost...services." Easily overlooked in the in the 210-page Federal Register document, this is a potentially significant development, but it will be unlikely to gain policy traction without substantial research into the development of efficient and reliable wetland ecosystem service assessment methods. To help orient such research efforts, this article provides: (1) background on the compensatory mitigation program and ecosystem services prior to promulgation of the new rule; (2) an overview of how the new rule integrates ecosystem service analysis into compensatory mitigation decisions; and (3) suggestions for a research agenda to support implementation of that feature of the rule.
Abstract: The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those who contend that peer review will politicize and burden agency activities. While peer review is fast becoming an integral and controversial part of agency behavior, it has received remarkably little scholarly attention. This article presents a comprehensive and current examination of peer review and is supported by new empirical data. To help sharpen our analysis, we conducted a nationwide survey of environmental law practitioners - lawyers who regularly practice on behalf of or before agencies with substantial regulatory missions. Most advocates of regulatory peer review argue that agencies regularly overstate the extent of scientific support for their policy decisions and that peer review will help correct that problem. Its critics contend it will unduly slow down agency decision-making. Our survey results suggest that those who actually practice regulatory law believe both of those propositions are likely. The challenge, therefore, is how to derive the benefits of regulatory peer review while minimizing its costs. Based on our survey, our evaluation of research from a wide variety of fields, and our own experience, which includes co-author J.B. Ruhl's tenure as the lawyer on a National Academy of Sciences committee that conducted the first high-profile peer review under the Endangered Species Act, we believe that peer review can assist the transparency and legitimacy of agency decisions by sharpening the line between scientific support and policy judgment in agency decision-making. Yet neither we nor anyone else who has entered the debate can say whether this benefit outweighs the costs that would result from adding such a procedure to agency processes, for the simple reason that nobody has produced robust empirical evidence to answer three basic questions - do agencies regularly overstate the scientific support for their decisions; if so, does this practice make a difference in terms of the policy merits of their decisions; and if so, does regulatory peer review provide a cost-effective means of correcting the practice? This gap in empirical data points to our proposed solution. We argue that regulatory peer review should take advantage of another practice of science - random sampling - in order to serve a diagnostic function in addition to its quality improvement function. By applying rigorous peer review to the science component of a small number of selected regulatory decisions, regulatory peer review could (a) help in defining the scope of the problem of agency overstatement of scientific support and (b) induce agencies to pay more attention to clearly articulating where science ends and policy judgment begins in the justification of their decisions. We provide the details of the proposal in the closing section of the manuscript.
regulation; environmental law; administrative law; peer review
Abstract: Throughout history, societies have been predicated on ready access to sources of drinking water, whether in the cisterns of Masada high above the Dead Sea, the graceful aqueducts carrying water into Rome, or the sacred Aboriginal water holes in Australia’s outback. But access is not enough. The water has to be safe to drink. And this presupposes a deceptively simple question - how do we know what “safe” water is?
In 21st century America, the answer seems simple - government experts and scientists tell us. We take for granted that our tap water is subject to exacting chemical and biological analyzes. The name of the relevant federal law - The Safe Drinking Water Act - says it all. Yet, in historical terms, the very idea of the need to conduct detailed chemical and biological analyzes, much less even appreciating why we should care about drinking water’s invisible contents, is still stunningly novel. The germ theory of disease has only been around for about 150 years, a recent development compared to the history of human settlement. And, even today, legitimate questions are being asked about our drinking water. Are the standards stringent enough? Does the infrastructure delivering our water meet these standards? How can we be sure we are even regulating the right substances?
This article explores how societies through history have answered the timeless question, “Is it safe to drink the water?” Our technical understanding of water safety is more sophisticated than ever before, but a society’s understanding and regulation of drinking water has never been a purely technical matter. While the Safe Drinking Water Act may look dramatically different than the laws and norms relied on by other societies and in other times, they share far more similarities than differences.
Norms and values shape our management of safe drinking water just as surely as do chemical assays. The fundamental problem, as we shall see, is that no source of water can ever be safe in completely objective terms, either today or two hundred years from now. Because of the universality of this challenge, because safety is an eternally moving target, one can take valuable lessons from the historical record. The article explores how societies have changed their conception of safe drinking water through time, shifting their behavior, governance and laws as a result, and what this means for us today.
Abstract: Over the past decade, efforts to value and protect ecosystem services have been promoted by many as the last, best hope for making conservation mainstream - attractive and commonplace worldwide. In theory, if we can help individuals and institutions to recognize the value of nature, then this should greatly increase investments in conservation, while at the same time fostering human well-being. In practice, however, we have not yet developed the scientific basis, nor the policy and finance mechanisms, for incorporating natural capital into resource- and land-use decisions on a large scale. Here, we propose a conceptual framework and sketch out a strategic plan for delivering on the promise of ecosystem services, drawing on emerging examples from Hawai‘i. We describe key advances in the science and practice of accounting for natural capital in the decisions of individuals, communities, corporations, and governments.
Abstract: While the Obama administration has made climate change a priority and the House of Representatives has passed a bill, it remains uncertain when or if the Senate will act on this issue, much less what final legislation might be signed. Until then, the Clean Air Act (CAA) remains the law of the land. In light of the CAA's central role in addressing climate change over at least the near term and perhaps far longer, on March 26, 2009, a group of the nation’s leading CAA experts gathered at Duke University to focus specifically on how the U.S. Environmental Protection Agency (EPA) could or should use the CAA to reduce the nation’s greenhouse gases (GHGs). This short article highlights the major points debated during the day-long conference and provides insights into the factors EPA will need to consider as it moves forward with crafting GHG regulations under Title I and Title II of the CAA.
endangerment finding, greenhouse gases, climate change, EPA
Abstract: Over the past five years, there has been increasing interest around the globe in payment schemes for the provision of ecosystem services, such as water purification, carbon sequestration, flood control, etc. Written for an Asian Development Bank project in China, this report provides a user-friendly guide to designing payments for the provision of ecosystem services. Part I explains the different types of ecosystem services, different ways of assessing their value, and why they are traditionally under-protected by law and policy. This is followed by an analysis of when payments for services are a preferable approach to other policy instruments. Part II explains the design issues underlying payments for services. These include identification of the service as well as potential buyers and sellers, the level of service needed, payment timing, payment type, and risk allocation. Part II contains a detailed analysis of the different types of payment mechanisms, ranging from general subsidy and certification to mitigation and offset payments. Part III explores the challenges to designing a payment scheme. These include the ability to monitor service provision, secure property rights, perverse incentives, supporting institutions, and poverty alleviation.
Abstract: Since the New Deal, and even before, regulatory law has grown relentlessly ever more massive, detailed, and encompassing. The sentiment, "there's too much law", surely rings true on a daily basis to both practitioners and regulated parties, but there is remarkably little scholarship delving beneath this glib cliche. Scholarly elaborations on "optimal precision" and "mud and crystals" explore the design of individual regulations, and are valuable in that sense, but they do not examine the systemic implications of regulatory accretion. As easy as it is to find quips in the literature decrying the accumulation of "too many rules", one searches in vain for principled analysis of the problem and its solutions. We argue that regulatory accretion warrants serious consideration in its own right. Accretion presents a different kind of problem than the traditional critiques of inefficiency, complexity, or democratic accountability. It creates a separate type of challenge that has not, and will not, be addressed adequately by many of the entries in the current parade of proposed reforms.
Part I of the Article describes the phenomenon of regulatory accretion from several perspectives. We define a range of metrics, showing that over the last 50 years, regulatory growth has been the rule rather than the exception using virtually any measure. We also show why regulatory law theory suggests we should expect accretion to be the dominant dynamic in regulatory systems, overwhelming any forces of regulatory "erosion". We close Part I with evidence that the regulatory community - both regulators and the regulated - perceives regulatory accretion as a significant factor in the prevalence of noncompliance and the fulfillment of policy objectives.
Part II lays out our theory of how regulatory accretion, even of perfect rules, increases noncompliance by changing the very quality of how the regulatory system operates. The conventional view is that compliance is simply a matter of investing the appropriate level of resources toward gathering the information needed to perform the tasks required to comply (information burden), and then performing them (effort burden). Accretion of rules adds a third challenge to compliance, however, which we call system burdens. These burdens arise from the operation of the collection of rules as a system. Overlooked in regulatory law theory, system burdens can confound compliance even when sufficient resources are devoted to meeting all the effort and information burdens.
In Part III we explore the practical implications of system burdens. There is always bound to be some residual or background noncompliance, what regulatory law theory calls "slippage". Additional investment in enforcement and compliance behavior may chip away at this residual, but will not do so with equal success across the three forms of compliance burdens. Noncompliance stemming from system burdens will be much harder to resolve than will noncompliance associated with effort and information, because it is not associated with discrete rules. In regulatory fields that experience high levels of system burdens, such as environmental law, there will be high rates of noncompliance and, more important, compliance itself may be difficult to translate into a tangible policy goal "payoff". This combination can lead the regulated community to question the legitimacy of the system in general, and value compliance behavior less.
In Part IV we offer observations about how regulatory law can respond to the problem of accretion. We describe the fallacy of rule-specific solutions, positing instead that any meaningful response must tap into system level behaviors. Because of the focus in regulatory law and theory on efficiency, clarity, and accountability, conventional policy approaches generally describe problems in rule-specific terms. Although the number of rules in the administrative state may trigger system burdens that interfere with the very goals of regulation, the solution is not, it cannot be, to reduce the number of rules. Rather, as we go on to explain, the best strategy for managing system burdens is to evolve with them. Rather than myopic attention to each rule, the focus should be on building adaptive structures in the administrative system itself, so as to take advantage of the system-wide nature of large rule-based regimes. We show that the emerging body of literature on regulatory reform adopts this approach through its focus on market-based, information-based, and performance-based regulatory instruments. Our model of regulatory accretion offers original insights into not only why deregulation offers little promise in addressing system burdens but, more important, a central principle on which to design the next generation of regulation.
Abstract: What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserv for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserv and members of the ABA's Section on Environment, Energy and Resources. We enjoyed a high level of participation, with over 440 responses from across the nation, from academics and practitioners alike. Among the most interesting findings are: (1) not surprisingly, Chevron remains firmly in the Top Three cases; (2) more surprisingly, the relatively young Massachusetts v. EPA has vaulted to the top as the most significant case in the field; (3) most surprisingly, Rapanos scored in the Top Three in most categories of respondents and in the top four for almost all the categories; (4) TVA v. Hill , while still a favorite among academics, has faded from prominence among practitioners; and (5) some of the classic environmental law cases that scored high on the 2001 survey, such as Overton Park and Ethyl Corp., have fallen off the cliff. Our article discusses the findings in more detail and our musing explanations for the surprise results.
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