ENVIRONMENTAL LAW & POLICY eJOURNAL
"Explaining the Post-2000 Brown Shift in US Manufacturing: The Roles of China, Bush, and Induced Innovation"
CHIA-HUI LU, City University of Hong Kong (CityUHK) - Department of Economics & Finance
YU PANG, Hong Kong Polytechnic University - Department of Logistics and Maritime Studies
Levinson (AER 2009) shows that US manufacturing increased output and lowered pollution between 1987 and 2001 by shifting production toward cleaner industries (a â€śgreen shiftâ€?) and adopting cleaner techniques. By extending Levinsonâ€™s analysis through 2009, we find that the green shift has reversed to a brown shift since 2000, despite the ongoing cleanup. We propose and investigate the following possible causes for this brown shift: (i) US-China trade liberalization, (ii) environmental regulation relief by the Bush administration, and (iii) pollution abatement innovations. Our empirical finding suggests that free trade and innovation could help to explain the post-2000 brown shift.
"A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective"
4 Michigan Journal of Environmental & Administrative Law 303 (2015)
DONALD J. KOCHAN, Chapman University, The Dale E. Fowler School of Law
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving oneâ€™s land use control preferences and oneâ€™s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the â€śDynamic Circle of Land Use Controlsâ€? better situates one to see all of the systemâ€™s parts and, more importantly, to strategically plan oneâ€™s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.
"Getting it Right: How the Iowa Supreme Court Correctly Made Room for Common Law State Torts in Clean Air Act Litigation"
MICHAEL S. BOAL, University of Nebraska College of Law
For centuries, common law torts have provided citizens with a reliable avenue to redress environmental harm. Whether such harm presented itself through water, air, or waste pollution, citizens have long been empowered to seek remedies in state courts, alleging most commonly nuisance, negligence, or trespass. However, recent expansion of federal oversight and regulation in the area of environmental law has compelled courts to consider whether these state common law torts have now been preempted by federal legislation.
In 2011, the U.S. Supreme Court decision American Electric Power Co. v. Connecticut held that the Clean Air Act, which essentially regulates the nationâ€™s air pollution, displaces all federal common law claims seeking relief against air polluters. The Court did not hold whether state common law claims were also preempted by the Clean Air Act, and instead, the Court expressly left the question undecided. Predictably, several lower federal courts have since confronted the question of whether state common law claims are preempted by the Clean Air Act. Although these courts have generally held that the Clean Air Act does not preempt all state common law claims, they have not been unanimous.
In June of 2014, the Iowa Supreme Court became one of the first state supreme courts to address this issue in Freeman v. Grain Processing Corporation. In a unanimous decision, the Iowa court held that the plaintiffsâ€™ common law tort claims against a local corn wet milling facility were not preempted by the Clean Air Act or its state law corollary.
This Note contends that the Iowa Supreme Courtâ€™s preemption analysis was consistent with U.S. Supreme Court principles, and accordingly, that Freeman was correctly decided.
The courtâ€™s decision reached the correct result for three reasons. First, the court recognized the conceptual and remedial differences between private tort actions and public environmental regulation. Second, the court gave full meaning to the structural framework and statutory language of the Clean Air Act. Third, the Iowa court properly relied on U.S. Supreme Court precedent interpreting the Clean Water Act to interpret the similar Clean Air Act.
Freeman now allows Iowa citizens to redress actual harm caused by environmental air pollution through tort instead of relying on an overarching, bureaucratic regulatory system. Whether or not a citizen can actually demonstrate environmental harm â€” and collect damages from environmental polluters â€” was beyond the scope of the Freeman decision. As to the threshold question of whether common law claims can even coexist in an immense regulatory framework such as the Clean Air Act, Freeman v. Grain Processing Corporation correctly reaffirmed the role of common law torts in an age of environmental statutory regulation and determined that the Clean Air Act makes room for these state common law claims.
"A Contingent Valuation Approach to Estimating Regulatory Costs: Mexico's Day Without Driving Program"
Resources for the Future Discussion Paper 15-21
ALLEN BLACKMAN, Resources for the Future
FRANCISCO ALPIZAR, Tropical Agricultural and Higher Education Center
FREDRIK CARLSSON, Goeteborg University - School of Economics & Commercial Law
MARISOL RIVERA-PLANTER, National Institute of Ecology
Little is known about the cost of environmental regulations such as residential zoning restrictions and recycling mandates that target households instead of firms, partly because of significant methodological and data challenges. We use a survey-based approach, the contingent valuation method, to measure the costs of Mexico Cityâ€™s Day Without Driving program, which seeks to stem pollution and traffic congestion by prohibiting vehicles from being driven one day each week. To our knowledge, ours is the first study of an actual regulation to use this approach. We find that the Mexican programâ€™s costs are substantial: up to US $103 per vehicle per year, about 1 percent of driversâ€™ annual income. Recent research has questioned whether programs for driving restrictions in Mexico City and several other megacities actually have environmental benefits. Our results suggest that whatever benefits these programs may have, they can be quite costly.
"Contextual Compliance: Situational and Subjective Costâ€?Benefit Decisions About Pesticides by Chinese Farmers"
Law & Policy, Vol. 37, Issue 3, pp. 240-263, 2015
HUIQI YAN, University of Amsterdam - Faculty of Law
BENJAMIN VAN ROOIJ, University of California, Irvine School of Law, University of Amsterdam - Faculty of Law
JEROEN VAN DER HEIJDEN, Senior Research Fellow, Regulatory Institutions Network (RegNet), Australian National University (ANU), Associate Professor, Amsterdam Law School, University of Amsterdam
This article analyzes how costâ€?benefit calculation influences compliance with pesticide regulation by Chinese farmers. Building on a study including 150 farmers and experts, it studies how operational costs and benefits and deterrence affect compliance. Moreover, it studies what variation in costâ€?benefit perceptions there are with different types of rules, farms, and villages. It finds that, in this context, costâ€?benefit calculation matters for compliance; with operational costs and benefits being more clearly related to compliant behavior than deterrence. It highlights that perceptions about costs and benefits are situational and vary along the type of legal rule and the type of regulated actor. It also shows that such perceptions are individually subjective, as even with similar rules and similar types of actors, perceptions vary. The paper concludes by stating expectations on how the situational and subjective nature of costâ€?benefit calculation can inform regulators seeking to enhance compliance.
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ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS
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