MICHAEL L. RUSTAD, Suffolk University Law School, Stetson University - College of Law
Email: mrustad@suffolk.edu
THOMAS H. KOENIG, Northeastern University
Email: T.Koenig@neu.edu
ERICA R. FERREIRA, Independent
Email: ericaferreiraesq@gmail.com

From the late 1970s to the end of the 1990s, electricity producers modified and operated coal-fired power plants in violation of the Environment Protection Agency’s (EPA) permitting requirements, creating widespread air quality degradation. The EPA’s policy of lax oversight ended in 1999 when it launched a large, coordinated enforcement effort. The 2012 Republican presidential candidates all denounced this more vigilant EPA as engaging in economic terrorism through “sue and settle� tactics that amount to backdoor regulation. This article evaluates federal environmental enforcement, drawing upon objective data from our empirical study of EPA permitting violation settlements for coal-fired power plants entered into between January 1, 2000 and December 31, 2011. The data reveals that the EPA’s enforcement policy reflects a unique jurisprudence that creatively combines both deterrence-based punishment through appropriately levied civil penalties and restorative justice principles in the form of mitigation projects and mandatory injunctions. Other regulatory agencies should consider adopting restorative justice insights in designing remedies for diffuse civil wrongs such as securities fraud, consumer product safety, and unfair or deceptive trade practices.

JESSICA OWLEY, SUNY Buffalo Law School
Email: jol@buffalo.edu

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve if we apply lessons about public involvement and information from our citizen suit tradition.

THOMAS ANGELL HATFIELD, Independent
Email: demasenali@gmail.com

The Northeast Regional Planning Body (NE-RPB) process should be beyond reproach with respect to ethical standards, and the public should never have reason to call into question its trust of the NE-RPB process, or the integrity of the NE-RPB to be guided by principles upon which our democratic republic is based. Based on statements made at the last few minutes of the NE-RPB meeting on April 12, 2013, this open communication discusses issues involving serious ethical and fiduciary concerns for the NE-RPB related to GIS mapping, and issues that appear to have been entirely missed by the NE-RPB, and the National Ocean Council in providing the NE-RPB guidance. This communication specifically focuses on issues flowing from statements made at the end of the April 2013 NE-RPB meeting, and proposes several ways that the National Ocean Policy and/or the NE-RPB initiative can begin addressing these important concerns, as well as make use of open source and open innovation to ensure the National Ocean Policy initiative becomes the success for society it should be.

SCOTT ANDREW SHEPARD, The John Marshall Law School
Email: sshepard@jmls.edu

Emissions caps work on a simple and compelling premise. Regulated entities, in the process of creating something desirable, like energy, create and expel some problematic by-product, such as carbon. They do this because they directly reap a significant set of benefits (e.g., profits, market share, job security) from their efforts, while only diffusely and incidentally, along with the rest of society, suffering the harms caused by their emissions. These emissions, paid for primarily by the rest of society, are called negative externalities. Emissions-cap regimes are designed to make regulated entities more directly accountable for the costs of their emissions and give them heightened incentives to minimize those emissions. This process is known as the internalizing of externalities.

Perhaps ironically, regulatory agencies occupy a position markedly similar to that of the regulated emitters. Such agencies, in the process of creating something desirable, such as a cleaner environment, also create and impose negative externalities, such as burdens on business and the economy. They do this because they directly reap a significant set of benefits (e.g., job security and prospects, additional authority and powers, prestige and self-worth) from their efforts, while only diffusely and incidentally, along with the rest of society, suffering the harms caused by the dead-weight costs of their regulations. Emissions-cap regimes therefore can provide a condign – though nevertheless imperfect – model for establishing a system by which regulatory agencies can be obliged meaningfully to take account of, and to minimize, the efficiency and economic losses occasioned by their regulations.

This article will propose and elaborate for the first time a regulatory “Compliance Cost Cap� system derived from emissions-cap models and the principles that animate such models, designed to oblige regulatory agencies to constrain the deadweight costs of their regulations.

PHILIP P. DE PAULA, Independent
Email: alligatorhunt@gmail.com

This paper intends to explore whether government regulation hinders rather than serves the goals of environmentalism by inhibiting possible free market mechanisms. The primary focus will be upon the tort aspects of environmental law, and whether these might be expanded to allow for litigation to serve as both the arbiter and the primary determent mechanism for environmental torts. In order to accomplish such a system, the viability of two current facets of environmental regulation will be examined.

First, the imposition of environmental standards by centralized federal agencies will be examined to the extent that they limit efficiency and local responsiveness. The intention is to explore whether allowing courts and local governments and moreover courts to administer environmental law will have the effect of opening up litigation and producing more reactive local results. Second, the institution of limiting standing to government actors, especially with regard to the Lujan decision will be examined as a mechanism that provides polluters a potential escape where government resources fail. Further, create a generalized property right in environmental interests will be presented as a solution to the standing question. The aim is to determine the effect of centralized administration in preventing pollution control as well as presenting decentralization as a more effective and efficient means of pursuing this goal.

The paper will draw from United States jurisprudence on environmental law as well drawing heavily from scholarly writing on environmental law and the economics of environmentalism.

GABRIELA STEIER, Independent
Email: Gabi.Steier@gmail.com

This article discusses how veggie libel laws can educate consumers to change the food systems from the inside out. Veggie libel laws, also called food disparagement statutes, attempt to stop defamatory statements that could harm industrial food producers in various states in the U.S. These laws prohibit statements that may reveal the ugly truth about foods sold in supermarkets as being unhealthy or even revolting. When free speech about fast food in those states is restricted, consumers are left questioning whether the companies are hiding something. Speaking up about vices is part of natural opposition and an integral element of our entire system of checks and balances. The food industry needs to be checked and rebalanced. By choosing mostly unprocessed, sustainably grown, plant-based foods, consumers are empowered to change the industrialized food production around — from a vice to a virtue.