"Environmental Law, Episode IV: A New Hope? Can Environmental Law Adapt for Resilient Communities and Ecosystems?" Free Download
Forthcoming in the Journal of Environmental and Sustainability Law (2014-2015)

CRAIG ANTHONY (TONY) ARNOLD, University of Louisville - Brandeis School of Law

This article, forthcoming in the Journal of Environmental and Sustainability Law (formerly the Missouri Environmental Law and Policy Review), describes the evolution of U.S. environmental law through four generations and the characteristics of each generation. The fourth generation of environmental law (Fourth-Generation Environmental Law) aims to increase the resilience of linked social systems and ecosystems (social-ecological resilience). Given that systems can collapse under disturbances and shift to entirely new structures and functions, our environmental law institutions need improved adaptive capacity. There are five distinct and important alternatives to traditionally rigid, fragmented, certainty-seeking environmental law structures: adaptation, adaptive management, adaptive planning, adaptive governance, and adaptive law.

Fortunately, adaptive environmental law and governance institutions are emerging, aimed at improving social-ecological resilience. Examples include developments in adaptive watershed governance institutions. These examples of fourth-generation environmental law suggest reasons to hope that environmental law can adapt for resilient communities and ecosystems. However, the article also explores the reasons why fourth-generation environmental law might disappoint us: its inherent limits and flaws. Nonetheless, hope itself is an adaptive and resilience-building strategy. The final section of the article discusses research on the psychology of hope and what it means for how we think about environmental law in the United States.

"Can Experts Be Trusted and What Can Be Done About it? Insights from the Biases and Heuristics Literature" Free Download
Forthcoming in 'Nudging and the Law: A European Perspective'; Alberto Alemanno and Anne-Lise Sibony Eds. (HART, 2015).

OREN PEREZ, Professor, Bar-Ilan University - Faculty of Law

Experts play an important role in the European Union ("EU") regulatory apparatus. They assist the EU Commission in multiple functions ranging from designing policies to the implementation of regulatory schemes. Experts work closely with various EU agencies such as the European Food Safety Authority (EFSA), the European Securities and Markets Authority (ESMA) or the European Integrated Pollution Prevention and Control (IPPC) Bureau (EIPPCB). Critiques have focused in this context on the problem of experts' conflict of interests (COI) which, due to misaligned incentives, can generate opinions that do not serve the public interest. This paper focuses on a different type of epistemic failure that could hinder the work of experts: their susceptibility to cognitive biases. This cognitive fallibility can generate mistaken policy advice even when incentives are not misaligned. The influence of experts on regulatory output creates a dilemma: how far can experts be trusted and what kind of mechanisms can be used to improve the epistemic credibility of their advice? The literature on cognitive biases suggests that the regulatory indifference to this problem is a cause for concern. There is broad evidence demonstrating that expert judgment is subject to various biases, such as the hindsight bias, confirmation bias or quantification bias. The paper considers the implications of this phenomenon to the regulatory project. It starts by examining those cognitive biases which are more critical to the work of experts in the regulatory context. It then moves to examine the question of de-biasing. Are there institutional mechanisms that can be used in order to de-bias experts' judgment? This question is particularly important because conventional control mechanisms such as judicial review or tort liability have generally failed to fulfill this task. The paper examines to what extent the psychological literature on de-biasing could provide insights to the regulatory context, noting the linkages between potential de-biasing mechanisms and the current regulatory framework governing experts' behavior. It concludes with a reflection on the challenges and prospects of the de-biasing project. It argues that the de-biasing project faces some difficult challenges, which need to be taken into account as we delineate its objectives. These challenges reflect, primarily, the broad range of cognitive biases underlying human reasoning (which calls for a differential, context-dependent de-biasing strategy) and the intrinsic limitations of self-reflexive, introspective de-biasing strategies. The scale and scope of these challenges mean also that attaining a bias-free decision-making environment is not achievable and our expectations from the de-biasing project should be formed with this understanding in mind.

"'Death by a Thousand Straws': Why and How the Great Lakes Council Should Define 'Reasonable Water Supply Alternative' Within the Great Lakes Compact" Free Download
Iowa Law Review, Forthcoming

AMANDA K. BEGGS, University of Iowa - College of Law

In 2008, President George W. Bush signed into law the Great Lakes-St. Lawrence River Basin Water Resources Compact (“Great Lakes Compact� or “Compact�). The Compact is a legally binding instrument between all the Great Lakes states that manages all water diversions out of the Great Lakes. The Compact sets a general prohibition on diverting water out of the Great Lakes and delineates a few exceptions to that ban. Under the Compact, a community in a “straddling county� is eligible for a diversion out of the Great Lakes if it demonstrates, among other things, that it does not have a “reasonable water supply alternative,� and receives approval from all members of the Great Lakes Council. To date, the Great Lakes Council has not defined “reasonable water supply alternative,� leaving it up to the Compact member states to develop their own definitions. The Great Lakes Council’s failure to define “reasonable water supply alternative� leaves the Council’s decisions to approve or deny a community in a “straddling county’s� diversion application vulnerable to legal challenges. This Note suggests that the Great Lakes Council should define “reasonable water supply alternative� with a focus on the alternative’s effectiveness in terms of public health and environmental effects as opposed to the alternative’s costs because this formulation will help avoid litigation and effectuate the purpose of the Compact.


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