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Thirty-Fourth Annual Administrative Law Issue Modular Environmental Regulation

Jody Freeman

Harvard Law School

Daniel A. Farber

University of California, Berkeley - School of Law

Duke Law Journal, Vol. 54, p. 795, 2005
UC Berkeley Public Law Research Paper No. 871725

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.

Number of Pages in PDF File: 69

Keywords: Administrative Law, Environmental Law, Political Science

JEL Classification: K10, K19, K32

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Date posted: December 29, 2005  

Suggested Citation

Freeman, Jody and Farber, Daniel A., Thirty-Fourth Annual Administrative Law Issue Modular Environmental Regulation. Duke Law Journal, Vol. 54, p. 795, 2005; UC Berkeley Public Law Research Paper No. 871725. Available at SSRN: http://ssrn.com/abstract=871725

Contact Information

Jody Freeman (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Daniel A. Farber
University of California, Berkeley - School of Law ( email )
Boalt Hall
Room 894
Berkeley, CA 94720-7200
United States
510-642-0340 (Phone)
510-642-3728 (Fax)
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