ENVIRONMENTAL LAW & POLICY eJOURNAL
"Regulating Farming: Balancing Food Safety and Environmental Protection in a Cooperative Governance Regime"
Wake Forest Law Review, Vol. 50, No. 2, 2015
MARGOT J. POLLANS, Pace Law School
This Article explores the relationship between two key areas of farming regulation: food safety and environmental protection. Focusing on the 2010 Food Safety Modernization Act, which directs the Federal Food and Drug Administration to promulgate rules governing produce safety on farms, this Article identifies a number of tradeoffs between these two areas. Many of these tradeoffs are not immediately apparent on the face of the Food Safety Modernization Act or its implementing rules and arise only as a result of farmers’ particular implementation choices. Like other agriculture regulation, the Food Safety Modernization Act relies on cooperative governance, allowing regulated entities to play a major role in the regulatory process. Thus, many details of the regulatory scheme are determined only after rulemaking is over. Unfortunately, most of the existing administrative law tools that manage tradeoffs between various regulatory goals — for example, cost-benefit analysis and interagency consultation — focus on the rulemaking process itself, and, as such, are poorly suited to address the tradeoffs that inevitably are made in the post-rulemaking implementation phase. There is therefore a mismatch between most risk tradeoff analysis tools — which are aimed at improving the decision-making of agencies during rulemaking — and agricultural cooperative governance schemes, which ultimately delegate tradeoff analysis to farmers to conduct during rule implementation. As a result, regulated entities engage in tradeoff analysis without adequate oversight or accountability. Because farmers are likely to be biased in favor of food safety and against environmental protection, the former is likely to win out regardless of whether the outcome is in the public interest. This Article calls for development of a systematic analytical tool to manage regulatory tradeoffs during rule implementation.
"Private Environmental Governance"
ENVIRONMENTAL DECISION MAKING, ENCYCLOPEDIA OF ENVIRONMENTAL LAW
(Lee Paddock, Nicholas Bryner & Robert Glicksman eds., Edward Elgar 2015, Forthcoming)
SARAH E. LIGHT, Legal Studies & Business Ethics Department, The Wharton School, University of Pennsylvania
MICHAEL P. VANDENBERGH, Vanderbilt University - Law School
In the last two decades, private environmental governance has emerged as an important component of environmental law and policy. Private environmental governance occurs when private organizations perform the environmental functions typically assigned to governments, such as management of common pool resources and reduction of negative environmental externalities. Private initiatives include standard-setting bilaterally through contract and collectively through industry associations or multi-stakeholder processes, as well as unilateral actions in response to pressure by non-governmental third parties. Private initiatives exist in parallel to many public environmental laws in subject-matter areas, including laws on fisheries, forests, toxics, and disclosure of facility-, project-, and firm-specific environmental effects. Private governance instruments also often parallel the instruments that government actors employ to achieve environmental objectives (such as prescriptive rules, property rights or entitlements, market instruments and informational governance). The emergence of private governance has generated important research questions regarding the drivers of consumer and corporate behavior, spillover effects, comparative institutional analysis, private administrative law, and the ability of private governance to address important unresolved environmental issues in areas such as climate change, hydraulic fracturing, and non-point source water pollution from agricultural runoff.
"Equity and Feasibility Regulation"
DOV A. WAISMAN, Southwestern Law School
What guiding principles should agencies like OSHA and EPA follow in regulating the serious health risks posed by industrial activity? Since the Reagan administration, there has been a strong regulatory trend in favor of cost-benefit analysis, which requires investment in risk reduction only so long as the health benefits (in terms of deaths and injuries avoided) exceed the costs. Feasibility analysis, which requires risks to be reduced to the maximum extent possible without bankrupting the regulated industries, has become the principal alternative to cost-benefit analysis. But it has suffered pointed criticism, principally on the grounds that it lacks a sound normative basis.
This Article offers a novel normative defense of feasibility analysis. The Article argues that the true normative basis of feasibility-based regulation is the norm of equity, which is concerned with equalizing the burdens differently-situated individuals must bear as the result of some socially desirable activity or practice. With this normative foundation in place, the Article explains why feasibility-based regulation makes sense in the common scenario in which the cost of reducing an industry’s serious health risks is spread among a vast number of consumers or shareholders.
"[Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side"
Andrea McArdle, Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side, 2 Savannah Law Review 247 (2015)
ANDREA L. MCARDLE, CUNY School of Law
What understandings about property, the community concerns informing it, and the legal relationships that flow from it can we draw from a city’s buildings and spaces? What contending values and expectations underpin laws that both protect property interests and seek to advance public safety, health, and economic well-being in urban neighborhoods? What explanatory narratives can advocates, analysts, and policymakers discern from such laws? This Article argues that the meaning we can draw from these buildings and streetscapes as they have been constructed, abandoned, or refashioned over time is complex and multifaceted. Using New York City’s Lower East Side landscape as exemplary text, the Article identifies various narratives of regulatory burden, scarcity, abandonment, transgression, and renewal that recur in the discourse of property law, and it considers ways in which local government institutions contribute to the shape of those narratives as regulators, service providers, and owners of property.
The Article begins with a brief account of conditions in the late 1960s and early 1970s that contributed to public and private disinvestment in the storied Lower East Side, a site of intense immigrant settlement at the turn of the twentieth century, and, in the 1950s and 1960s, a space that attracted writers, artists, and political activists. The Article then addresses how these conditions also afforded an opportunity for reclaiming devalued land and distressed neighborhoods. Beginning in the mid-1970s, neighborhood-initiated cultivation of gardens in vacant, burnt- out lots and homesteading occupants’ refurbishing of buildings that had fallen into disrepair created a new source of investment in city-owned property, holding out the promise of community stabilization.
This Article examines the legal implications of these autonomous, self-help responses to disinvestment. Initially, the City supported and legitimized community gardeners’ and homesteaders’ efforts at reclamation. However, when land values rose in the 1980s and 1990s, the City reversed course and invoked laws limiting access to property as it sought to auction off community gardens and to evict homesteaders as trespassers. In response, local gardeners sought redress under legal theories alleging violations of environmental law and civil rights. Squatters and homesteaders asserted rights as adverse possessors. Although these legal claims proved unavailing, by 2002, agreements negotiated on behalf of these claimants permanently protected some community gardens from development and afforded occupants of eleven squatted buildings a new legal status as shareholders of limited-equity cooperative housing.
Drawing on these developments, this Article addresses how such community efforts to reengage with threatened urban landscapes generate legal meaning. It discusses how the recently opened Museum of Reclaimed Urban Space (MORUS), which is literally built into a formerly squatted building in New York’s Lower East Side, both portrays and adds to that meaning-making. By illuminating the particular ways in which the owners and users of these contested spaces invoked both property law and community norms, MORUS documents how the squatter and community garden movements helped reintegrate distressed city buildings and lots as community spaces. The Article concludes with reflection on how the impulse to reclaim space also inevitably transforms it.
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ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS
BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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