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Abstract:
Although individuals cumulatively contribute significantly to pollution problems, regulators have generally avoided targeting them. However, many of the most vexing environmental problems that remain cannot be resolved without limiting individuals' environmentally destructive choices, or at least spurring individuals to take actions that reduce the harm that they cause to the environment. For a variety of reasons, targeting individuals through command and control programs or market-based programs, such as pollution trading or taxes, may be difficult.

Consequently, building on Robert Ellickson's groundbreaking work in Order Without Law, in a series of recent articles, Professor Michael Vandenbergh has argued that activation of personal norms is the best approach for reducing environmentally harmful actions by individuals. Vandenbergh and others argue that information disclosure programs can be used by government to stress to individuals the important role that their actions play in contributing to climate change and other environmental problems. Disclosure of that information, they argue, will activate personal norms in individuals tied to environmental protection or personal responsibility and will motivate individuals to avoid taking actions that are environmentally harmful.

While Vandenbergh focused on government efforts to activate personal norms in favor of environmental protection or personal responsibility, the recent shift in public attitudes toward global warming and the increased willingness of individuals to act to reduce their impact on global warming demonstrate that another constituency can, and has, played an important role in norm activation and influencing environmentally conscious behavior. Over the past decade, churches and religious organizations have delivered strong messages through words and deeds about the role that individuals play in contributing to global warming and the harm that they can cause to the environment and the poor through their actions and daily choices regarding energy use and transportation. Through these efforts, religious groups have activated personal norms of stewardship and social justice that have spurred changes in individual attitudes and behavior even without the imposition of command and control or economic-based programs by government.

As regulators begin to target individual behavior to address global warming and a variety of other environmental problems caused to a significant degree by individual action, regulators should recognize the role that religious organizations play in influencing individual behavior. If the government relies on information disclosure laws and strategies to activate personal norms to influence individual behavior change, it should explore ways to involve religious organizations in the information disclosure and could even provide grants to facilitate those efforts. At a minimum, the government should ensure that it does not frustrate the efforts of churches and religious organizations.

This article explores the feasibility of using information disclosure to activate personal norms as a means of changing environmentally harmful individual behavior, and the role that churches and religious organizations have played and can play in influencing individual values and behavior regarding the environment.

religion, environment, personal norms, norm activation, social justice, stewardship

Abstract:
For more than a decade, academics have suggested agencies are increasingly avoiding notice and comment rulemaking because the process has become "ossified" by procedures imposed by Congress, courts and the Executive Branch, and because the rules ultimately issued by agencies are frequently challenged. This article reviews the rules the United States Environmental Protection Agency (EPA) issued between 2001 and 2005 to determine the validity of those criticisms.

With regard to judicial challenges, 75% of EPA's most important ("economically significant") rules issued between 2001 and 2005 were challenged in court. This is consistent with the anecdotal claims of former EPA Administrators that 80% of their rules were challenged in court. With regard to the "ossification" of the notice and comment rulemaking process, while academics have claimed the "ossified" process often takes 3-5 years, the rules issued by EPA between 2001 and 2005 were generally finalized within 1.5-2 years. In addition, it did not take EPA much longer to finalize rules subject to the most stringent procedural requirements imposed by the Executive Branch and Congress than it took to finalize rules not subject to those procedures.

This does not necessarily mean, however, that EPA's rulemaking process is "deossified." In fact, one might predict the time it would take EPA to finalize rules would decrease if the agency were avoiding notice and comment rulemaking for particularly contentious rules due to "ossification" or the potential for legal challenges. More study is, therefore, necessary to determine whether EPA's rulemaking process is truly becoming "deossified."

Abstract:
A few months ago, Professor Wendy Wagner published an article in the Indiana Law Journal that advocated a “competition-based”approach to regulate toxic chemicals and other substances. In her proposed system, a company could obtain a certification from EPA that a product that it produces is environmentally superior to a competitor’s product, based on an adjudication between the companies. This would create an advantage for the company in the market, as the product could be labeled as superior to its competitor. Under Professor Wagner’s proposal, in light of the information disclosed in the adjudication, EPA could also ban the inferior product or impose other limits on it, in addition to certifying the superior product. While Professor Wagner’s proposal centers on toxic chemicals, she suggests that “competition-based” regulation could be applied on a broader scale.

The attached article examines the advantages of Professor Wagner’s proposal and the challenges inherent in implementing it, and explores whether the proposal could be modified to minimize those challenges.

Professor Wagner’s “competition-based” regulation proposal is a combination of command and control regulation and market-based alternatives, and could combine the strengths of both approaches. However, Professor Wagner’s proposal may be very difficult to implement because it requires EPA to make a decision to certify a product as “superior” based on a vague, largely undefined standard. For all of the reasons that EPA has had difficulty setting “harm-based” standards under other regulatory programs, it is likely to have difficulty making the determination of whether one product is “superior” to another with regard to its environmental and health impacts. In addition, the proposal provides EPA with broad discretion to resolve difficult policy decisions regarding “superiority” with limited public input and allows the agency to hide those policy decisions from public view. Further, Professor Wagner proposes that the agency make the “superiority” decisions through the formal rulemaking process, a process which has long been out of favor with agencies and Congress because it is expensive and time consuming. Formal rulemaking is also a poor vehicle for resolving the difficult questions of fact and policy that will be central to a determination that one product is environmentally superior to another. Finally, the cumbersome rulemaking process, combined with the vague standard for “superiority”, raises “environmental justice” concerns.

Abstract:
Over the years, academics have criticized the Supreme Court for failing to treat “environmental law” as a unique area of law or for being hostile to environmental law. The October 2008 Term of the Court was particularly harsh on the environment. The Court decided five cases that raised issues of environmental law and the environment was the loser in each case. Although the Roberts Court is only beginning its fifth term in October, some preliminary observations can be made about the Court’s treatment of environmental law. This article examines the environmental jurisprudence of the Roberts Court over its first four terms and briefly explores whether the ascendancy of Justice Sonia Sotomayor to replace Justice David Souter may influence the Court’s decision-making in environmental cases.

Despite the rulings of the past term, the Roberts Court, over four terms, has not been overtly hostile to the environment, although the Justices seem to be increasingly polarized in environmental cases, and the Courts’ decisions, on the whole, are generally more harmful to the environment than beneficial. For the most part, though, the Court continues to treat environmental cases as administrative, statutory or constitutional law cases that merely arise in the context of environmental disputes.

While it may be difficult to characterize the environmental decisions of the Roberts’ Court, as a whole, as “pro-environment” or “anti-environment,” a couple themes consistently appear in the Court’s resolution of those cases. First, in most of the environmental cases that the Court has heard, it has adopted a position advocated or defended by a federal, state or local government when governmental interests are at issue. Second, in all of the environmental cases that implicate federalism concerns, the Court has rendered decisions that are in favor of States rights, regardless of whether the decisions are beneficial to, or harmful to, the environment. Finally, while the Court continues to rely primarily on textualism to interpret statutes, the Court has not relied on textualism to support its decisions in most of the cases that have been harmful to the environment. On the contrary, in many of the Court’s pro-environment decisions, the Court relied on the plain meaning of the environmental laws to resolve the cases.

Abstract:
This is the 2007 supplement to the 2005 Wetlands Law and Policy: Understanding Section 404 book published by the American Bar Association.

Wetlands, Rapanos