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Abstract:
In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

administrative law, global warming, Massachusetts v. EPA

Abstract:
In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

administrative law, global warming, Massachusetts v. EPA

Abstract:
In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

administrative law, global warming, Massachusetts v. EPA

Abstract:
The traditional focus in adminstrative law on agency discretion prevents us from appreciating the extent of private participation in governance. Although legal scholars have long acknowledged some forms of private engagement with public agencies, such as lobbying and litigation, non-government actors remain marginal in a field dominated by agency action. Private actors are involved in myriad ways in every dimension of the regulatory and administrative process. Their role in governance has taken on even greater importance in the face of widespread privatization and contracting out, as they increasingly perform what are thought to be "public functions." The article provides illustrations of the private role in governance, arguing that the regulatory and adminstrative process is characterized by public-private interdependence. It offers a conceptualization of governance as a product of regulatory regimes in which responsibility is shared, rather than distinctly separate "public" and "private" actors. While administrative law must now orient itself to respond to private activity, scholars ought to resist the impulse to simply constrain private actors as if they were agencies, either by considering them to be "public" actors for constitutional purposes or by incorporating public law norms into private law. A deeper understanding of the private role in governance will help clarify the dangers posed by different regulatory regimes and the mechanisms -- traditional and non-traditional, formal and informal -- with which administrative law might respond. Viewing governance as a shared enterprise allows us to separate the mechanisms that produce public law values (accountability, rationality, neutrality) from the public or private nature of the decision maker. This in turn helps to cast private parties in a more realistic and balanced light. Private actors are not just rational, self-interested rent-seekers that exacerbate the traditional accountability problem in administrative law; they are also regulatory resources capable of contributing to the efficacy and legitimacy of administration.

Abstract:
In this Article, we challenge the "monolithic view" of Congressional control over delegated power, which assumes that oversight committees will enforce the wishes of an enacting majority. In contrast with this prevailing view we argue that Congress consists of rivals who compete for control over power delegated to agencies. Individual committee members with access to oversight tools vie for control over agencies, both with each other and with past enacting majorities, to further their own interests. We argue, contrary to the conventional understanding, that committee members sometimes defy majority preferences rather than reinforce them.

We claim that Congress creates an internal accountability problem when it delegates oversight power to its committees, just as it creates a problem of control when it delegates administrative power to agencies. Indeed, one delegation might exacerbate the other. And together, this "double delegation" creates a significant risk that agency decision making will be driven by the interests of small sub-majorities of Congress, and that this influence will subvert statutory commands. Playing off Bickel's famous characterization of the judiciary, we call this problem the "sub-majoritarian difficulty." Sub-majoritarianism may be so severe as to re-introduce parochialism into the implementation of federal statutes meant to impose national solutions - a phenomenon we call "backdoor federalism." We support our theoretical argument with an empirical test of decision making by the US Fish and Wildlife Service.

In the literature on delegated power, our argument shifts the question from how best to make administrative agencies accountable to Congress, to who ought to be the principal, given the viability of multiple legislative principals. We speculate about how political scientists and legal scholars, respectively, might react to this competition among principals, and we explore measures that might minimize the adverse effects of sub-majoritarianism.

Abstract:
DeShazo and Freeman use the example of climate change to explore two questions: what effect does initial state regulatory activity have on timing of federal regulation, and what explains the form of the ensuing federal policy response? Drawing on race to the bottom, interstate externality and defensive preemption theory, the article develops a picture of how state regulatory entrepreneurialism can provoke interest groups on both sides of an issue to simultaneously demand federal regulation, though for different reasons: environmentalists and state and local governments appeal for federal standards to help solve a collective action problem, spread the cost of regulation, and benefit in-state industries whereas industry will appeal for uniform and preemptive federal standards in the face of costly and heterogeneous state regulations. The article explains how states have hit the "regulatory sweet spot" with their climate change initiatives, illustrating how states can be incremental catalysts of a federal policy response, essentially prompting federal action sooner rather than later. The article then explores three key factors that influence the form of the federal policy response: the end-goals of the dominant interest groups, the particular properties of the regulatory problem, and the compatibility of the available regulatory tools with the eligible targets of regulation. These factors help explain interest group convergence on cap-and-trade as the regulatory tool of choice. The authors show how the unique nature of climate change - the fact that it involves stock pollutants - frees environmentalists from concerns about local effects and enables them to support a cap-and-trade approach; how cap-and-trade, uniquely, provides opportunities for rent seeking in the form of grandfathering, allocation, credits, and offsets; and how early "voluntary" emissions reductions programs create some path dependence for cap-and-trade. Finally, the article explains how some regulatory tools are more compatible than others with different nodes of regulation in the supply chain. As a result, the outcome of political struggles over where to place the burden of regulation (i.e., upstream or downstream) has an impact on what tools will be chosen. Although cap-and-trade may seem on its face like a sensible solution to greenhouse gas regulation, the article explains how a convergence of support for this instrument comes about.

Administrative Law, Environmental Law, Natural Resources

Abstract:
The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.

In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the "climate change winner" argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation - the construction of both literal and figurative sea walls to reduce the effects of global warming.

The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.

We demonstrate that even if one accepts that the premises of the climate change winner argument - that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states - the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.

We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.

This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.

climate change, global warming

Abstract:
This Article proposes a modular conception of environmental regulation and natural resource management as an alternative to traditional approaches. Under traditional approaches, agencies tend to operate independently, and often at cross-purposes, using relatively inflexible regulatory tools, without significant stakeholder input, and without institutional mechanisms capable of adapting to changing conditions over time. Modularity, by contrast, is characterized by a high degree of flexible coordination across government agencies as well as between public agencies and private actors; governance structures in which form follows function; a problem-solving orientation that requires flexibility; and reliance on a mix of formal and informal tools of implementation, including both traditional regulation and contract-like agreements. The Article frames the enterprise of environmental regulation and resource management as an exercise in designing governance institutions capable of managing multiple and seemingly incompatible demands over the long term. This approach departs from the traditional legal framing of such environmental conflicts as shorter-term and zero-sum questions of jurisdiction, authority, entitlement, and prohibition.

To illustrate modularity, the Article presents a detailed case study of the CalFed Bay-Delta Program, a multiagency effort to address competing demands on the water resources in the San Francisco Bay Delta. The story of CalFed illustrates many features of the modular ideal identified in the Article, and shows concretely how such an approach can achieve both procedural and substantive policy innovation while also producing measurable environmental improvements on the ground. The case study anchors the elaboration of the modular conception and its constituent elements presented in the latter part of the Article. Finally, the Article analyzes why the modular ideal is so hard to achieve in practice, yet it concludes that there is no alternative to moving toward modularity given the complex nature of the environmental and natural resource problems that we face.

Administrative Law, Environmental Law, Political Science

Abstract:
In this Article Professors DeShazo and Freeman identify a new mechanism by which Congress can control delegated power: the use of other agencies as lobbyists - a phenomenon the Article calls lateral legislative control. Agency lobbying can help to solve the problem that Congress creates when it charges an agency with additional mandates that conflict with the primary mandates in the agency's enabling act. Rather than balancing these competing duties, agencies frequently resolve such interstatutory conflicts by prioritizing their primary mission and letting their secondary obligations fall by the wayside. The Article proposes that Congress can overcome this problem of agency reluctance to comply with secondary mandates by enabling other public agencies to lobby the reluctant agency to take the mandates more seriously. The Article presents an empirical study of the Federal Energy Regulatory Commission's (FERC) hydropower relicensing decisions between 1982 and 1998 to show that passage of the Electric Consumers Protection Act (ECPA) of 1986 strengthened resource agencies' ability to lobby FERC, and resulted in a significant increase in the number of environmental conditions imposed. The Article thereby shows that agencies lobby one another, that Congress can facilitate interagency lobbying, and that lobbying alters agency outcomes.

The Article concludes by showing that interagency lobbying has significant implications for several current issues in administrative law and political science. It presents a new mechanism for controlling delegated discretion, suggests a means for counterbalancing private interest groups that challenges conventional interest group theory, and proposes, paradoxically, that interagency conflict can be constructive. Additionally, the Article examines the separation-of-powers concerns that interagency lobbying may raise and suggests that interagency lobbying supplies a new rationale for judicial deference to agency decisions.

administrative law, environmetal law, natural resource law, public law

Abstract:
In this article, Professor Freeman argues that contract is an increasingly important administrative and regulatory instrument, with significant implications for administrative law. She focuses on two species of contract-contracts to provide services or benefits (already well entrenched in the United States) and regulatory contracts (a nascent, but noteworthy, development) and argues that, in an era of widespread contracting out and devolution, and at a time of increasing experimentation with contracts as regulatory instruments, the pressure for government/private contracts to absorb public law norms of fairness, rationality and accountability will intensify. Conceptually, she claims, government/private contracts of both sorts force an uncomfortable interface between private and public law. They pose a host of doctrinal and theoretical problems for which administrative law provides no ready answers. Despite their significant risks, however, Professor Freeman suggests that government/private contracts might have significant benefits that we ought not to overlook. Indeed, contracts themselves can be potentially crucial accountability mechanisms in an era of greater private involvement in administration and regulation. They could, for example, allow third party beneficiaries to hold the contracting parties accountable for their commitments. Moreover, contracts may enable government agencies to accomplish indirectly, what, for legal or political reasons, they cannot achieve directly. As with grants in aid between the federal and state governments, public/private contracts could be a means of extending government priorities and policies to private actors, and of exacting concessions and gains that might otherwise be beyond its regulatory reach. Under the right circumstances Freeman argues, regulatory contracts could prove more--or at least no less--effective and democratic, than other regulatory instruments. The rise of contract may therefore signal not so much the retreat of the state, as a reconfiguration of the state's role in governance. That reconfiguration could conceivably amount to a net gain in accountability, or at least not a net loss.

Abstract:
This article proposes a conception of governance as a set of negotiated relationships between public and private actors. In this conception, public and private actors negotiate over policymaking, implementation and enforcement. The conception evokes an image of decisionmaking in which there is no center of control, such as the agency. This alternative conception challenges the public/private distinction in administrative law, and invites a reconsideration of the traditional administrative law pre-occupation with the accountability of "public" actors. It recognizes the pervasive and varied roles played by private actors in every aspect of governance. The article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is no purely private realm and no purely public one. There are only negotiated relationships between public and private actors. The argument then proceeds through a series of empirical examples that demonstrate the roles played by private actors in a variety of administrative contexts, including health care delivery and prison management as well as regulatory standard-setting, implementation and enforcement. This inquiry forces administrative law to reckon with private power, but calls into question the field's almost uniform defensiveness toward private actors. Private actors do not merely exacerbate the legitimacy crisis in administrative law; they may also be regulatory resources, capable of producing accountability. From the perspective of the new conception, public and private actors together produce accountability, through a combination of traditional and non-traditional mechanisms. This notion of "aggregate" accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates the field . The article concludes with a new administrative law agenda, which places public/private interdependence at the heart of the inquiry.

Abstract:
This paper argues that the discretion-constraining impulses of most regulatory reinvention efforts fail to respond to the most serious weaknesses of rulemaking, implementation and enforcement. This is partly because reformers are encumbered by the theory and practice of interest representation and partly because administrative law lacks an alternative model of administrative decision making. The paper's purposes are threefold: (1) to offer a normative vision of collaborative governance against which to evaluate proposals for reform. Collaboration requires problem-solving, provisional solutions, broad participation, public-private sharing of responsibility and a flexible, engaged agency. (2) to illustrate how some innovative administrative processes, such as regulatory negotiation and negotiated permitting, embody elements of the collaborative model and to explain why, despite their promise, they fall short of the collaborative ideal. As examples, the paper relies on four case studies, two each of regulatory negotiation and EPA's Project XL. (3) to argue that the pursuit of collaboration requires a willingness to experiment with non-traditional source of accountability in order to address the problem of legitimacy.