Pipelines to the north. Walls to the south. Between President Trump's issuance of a permit for the Keystone XL pipeline crossing from Canada and his promise to build "The Wall," the politics of our national borders rarely have been in as much turmoil as they are today. And as with any infrastructure project, environmental policy has been deeply in play all the way. But the environmental law of the borders might surprise you. Indeed, arguably there isn't any for these two projects.
The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this "robust yet fragile†(RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of large local or even system-wide failures — in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, however, how can we expect the legal system to manage systemic risk elsewhere? This Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems and how to manage it. Part I defines complexity in the context of the institutions and instruments that make up the legal system. Part II defines the five dimensions of robustness that support functionality of the legal system: (1) reliability; (2) efficiency; (3) scalability; (4) modularity, and (5) evolvability. Part III then defines system fragility, examining the internal and external constraints that impede legal system robustness and the fail-safe system control strategies for managing their effects. With those basic elements of the RYF dilemma model in place, Part IV defines systemic risk, exploring the paradoxical role of increasingly organized complexity brought about by fail-safe strategies as a source of legal system failure. There is no way around the RYF dilemma — some degree of systemic risk is inherent in any complex adaptive system — but the balance between robustness and fragility is something we can hope to influence. To explore how, Part V applies the RYF dilemma model to a concrete systemic risk management ...
Many people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them — as climate policy dialogue and legal scholarship consistently have — will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it has made them into climate change winners. Thus, whereas legal scholars have devoted considerable attention to how law and policy should respond to the prospect of vast numbers of climate change losers, this Article is the first to ask what law and policy should do about the climate change winners. Part I of the Article develops a policy-relevant typology of climate change benefits and beneficiaries, showing their potential to be significant in magnitude, diverse, and widely dispersed. Part II examines how climate change benefits are likely to lead many people and businesses to conclude they are climate change winners, in that they believe they are better off because of climate change. Part III frames the prospect of a class of climate change winners in the political economy of climate policy, arguing that people and businesses will fall in vastly different climate impact profiles that will lead to an even more complex and contested climate policy dynamic. Using the background developed in Parts I through III, the remainder of the Article turns to normative dimensions and positive legal responses. Part IV considers and refutes the arguments climate change winners might make to shape climate change mitigation policy around their interests in securing climate change benefits. Climate change mitigation policy should ignore climate change winners by design, not be default. By contrast, Part V argues that climate change adaptation policy should embrace climate change winners by making ...
Agriculture has long been the Rubik's Cube of environmental policy. Although agriculture is a leading cause of pollution and other environmental harms, it has been resistant to regulation and remarkably successful at requiring payment to do the right thing. This article focuses on hints of movement in a new direction for agriculture, arising out of a merger between the age-old practice of paying farmers to do what is right, the fear of losing agricultural lands to suburban development, the rising fiscal burdens to state and local jurisdictions presented by new suburban development, and the new understanding that farms may hold tremendous untapped value as providers of ecosystem services to local, regional, and national communities.
Much has been written lately in legal scholarship about the role of science in policy and the role of policy in science - and perhaps in no field of law has more been said about them than environmental law. Yet asking the question, "What is the proper role of science in environmental policy?" is utterly misguided, in that it suggests that science operates on the other side of a Wall of Virtue from policy. In The Honest Broker, Roger Pielke, Jr. refers to this as the "linear model" of science in society, "whereby knowledge is created in the lab, packaged by scientific experts, and then handed off to politicians to do what they will." The end result of this vision of science, however, is that "science has come to be viewed as simply a resource for enhancing the ability of groups in society to bargain, negotiate, and compromise in pursuit of their special interests." But in many ways science has asked for this by demanding, as Einstein once put it, to be "left in peace." In contrast to this vision, Pielke outlines a "stakeholder model" in which scientists-as-experts work to understand the interests of different groups and the users of knowledge themselves have some role in its production. Environmental law, in particular, is well-suited to Pielke's stakeholder model. As a body of law it is defined by an intersection between policy and science that entangles the two so much so that it is impossible to unravel a "proper role" for either without considering the "proper role" of the other. Rather, using the Endangered Species Act (ESA) as an example, I contend that law and science co-evolve in a law-science process that is continually in flux and often under stress, with the relevant question being how to manage them in unison so the process leads to sensible decisions. The real question, therefore, is how best to design, build, and maintain it as a set of principles that foster and protect the law-science process of environmental agencies. This paper addresses that question in four stages. Part I briefly lays out the ...
Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors they enjoy in environmental law, then argues for a core federal statute that blends regulation, information, tax, incentive, and trading instruments to address several of the major sources of harm. It is shown that conventional prescriptive regulation simply will not effectively fit the geographic, economic, and political demographics of farms, but that the proposed blend of instruments could achieve significant gains in farms' environmental performance without excessive administrative or compliance complexities and costs.
This article is the second in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first installment (in the Duke Law Journal), this work develops an evolutionary theory of legal systems as CAS. It suggests that long-term fitness of the legal system will require use of innovative, adaptive legal institutions and instruments.
These days, if you want to stir up high emotions in Congress, statehouses, corporate boardrooms or citizen group meetings, mention the word Superfund. That alias for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) evokes strong reactions from industry, environmentalists, bankers, politicians, and just about everyone else. CERCLA, a relative latecomer to the present-day body of federal environmental law, was enacted in 1980 to fill a gap in then existing law by creating the authority and liability for cleanup of abandoned facilities contaminated with hazardous substances. In the short time it has been with us, CERCLA has thrust the previously arcane subject matter of environmental law into the day-to-day experience of the American economy more than any other environmental statute. One reason CERCLA gets so much attention is that its reach is so pervasive and its effect so drastic. Only a small club of statutes of any sort could match the strength of CERCLA's liability provisions. The liability to governments and private entities for cleanup of contaminated facilities is retroactive, strict, joint and several, subject to extremely narrow defenses, and potentially very expensive. Past activities which were perfectly legal at the time they occurred can lead to present-day CERCLA liability. Present activities which never before were thought to raise concern can lead to CERCLA liability. Indeed, by the end of its first decade, CERCLA liability had been interpreted by the Statute's principal implementing agency, the United States Environmental Protection Agency (EPA), and the courts in ways so broad and so evolving as to make most environmental attorneys loathe to suggest that CERCLA liability could not attach in any particular set of cirumstances. One issue which has not been widely publicized yet, possibly because it is so misunderstood, involves what could be called the passive past owner (PPO).
To many, the ESA is the epitome of an anti-growth agenda, seemingly used as a pretext for stopping development rather than for the ostensible purpose of species protection. To its staunch supporters, however, the ESA represents one of the purest statements of the environmentalist ethic and a powerful weapon against the ravaging of spaceship Earth. To those who work with the ESA on a regular basis, it, like many other environmental laws, has its good and bad points . This Article does not attempt to resolve all the compelling questions posed by the conflicting policy objectives associated with the ESA. Rather, the Article focuses on an important emerging issue - the concept of a regional habitat conservation plan (RHCP) - that perhaps more than any other issue under the ESA today finds those conflicting policies in a head-on collision . Part I of this Article provides an overview of the ESA's basic regulatory structure, including the designation of protected species, the resolution of federal-action and non-federal projects which may affect listed species, and the scope of enforcement authority . Part II discusses the impetus for and the history of the RHCP phenomenon, showing it to be an inevitable response to the shortcomings of the ESA . Part III of the Article examines the problems faced and created by the RHCP approach as it has evolved. The Article concludes that the current legal bases for, and manner of implementation of, the RHCP approach seem destined to undermine its effectiveness. This thesis is tested in Part IV by using a case study of the ongoing attempts to resolve a variety of endangered species issues in the Hill Country terrain around Austin, Texas . Finally, Part V of this Article recommends actions at the legislative and administrative levels which could ameliorate these problems and help save the ESA from selfdestructing under the pressures of its legal and practical limitations.
Arbitrary political boundaries are no barrier at all to the physical effects of pollution and resource development. Yet, despite the optimism that ushered in the heightened environmental consciousness of the past several decades, political boundaries have posed a substantial barrier to resolving transboundary pollution control and resource development planning issues. This phenomenon has received considerable attention on the international level; however, because of a stubborn adherence to the idea that the states must serve as the primary jurisdictional units for managing pollution and resource development in the United States, transboundary problems are equally as apparent on the interstate level. After reviewing the three principal approaches the federal and state governments have used to manage interstate pollution and resource development, this article concludes that each of the approaches has failed in practice not because of inherent theoretical deficiencies but due to a failure of political commitment. Only a rethinking of our politics will enable us to effectively confront and resolve interstate pollution control and resource development planning issues.
Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental feature of regulatory design and should be explicitly considered at the time of program creation. Part I starts from first principles and sets out the basic features of regulatory exit. It addresses the design challenges of exit strategies and how to measure success of exit. With these descriptive and normative foundations in place, Part II develops a framework that explains the four basic types of regulatory exit strategies, exploring the political economy that determines each strategy and explaining when policy makers are most likely to adopt them. To demonstrate its usefulness in practice, the framework is applied as a case study in Part III to the emerging challenge of fracking. We conclude by describing a new exit strategy model for regulatory design, a hybrid approach of "Lookback Exit.†Exit is a vast, central, yet largely unexplored aspect of administrative governance. By providing a fuller account, we demonstrate why exit warrants focused research and theoretical development in its own right, create a framework for the analysis of exit issues, and identify the key questions for future research. Doing so provides important insights not only to understand the practice we see around us today but also for the design of programs to manage emerging issues.
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states' parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements — especially public participation, judicial review, and finality — as posing barriers to true adaptive management, but they have put forward no reform proposals. This Article represents the first effort in adaptive management theory to go beyond complaining about the handcuffs administrative law puts on adaptive management and to suggest a solution. The Article begins by explaining the theory and limits of adaptive management to emphasize that it is not appropriate for all or even most agency decision making. For its appropriate applications, however, we argue that conventional administrative law has unnecessarily shackled effective use of adaptive management. We show that the core values of administrative law can be implemented in ways that much better allow for adaptive management through a specialized "adaptive management track†of administrative procedures. Going further, we propose and explain draft model legislation that would create such a track for the specific types of agency decision making that could benefit from adaptive management.
Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the "permit power,†under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an "enormous power in the state,†Epstein bemoaned that it had "received scant attention in the academic literature.†He sought to fill that gap. Centered on his premise that the permit power represents "a complete inversion of the proper distribution of power within a legal system,†Epstein launched a scathing critique of regulatory permits in operation, condemning the practice as a "racket†for administrative abuses and excesses. Epstein's assessment of the permit power was and remains accurate in three respects. First, the permit power is vast. Regulatory permits reach into all corners of modern society and are one of the primary workhorses of the administrative state's exercise of authority. Second, the permit power is ripe for administrative abuse. Like any government power, it must be closely monitored. Third, the permit power has been largely ignored in legal scholarship. Indeed, it does not stretch things to say that Epstein has had the first and last words on the permit power. The problem is that, beyond what he got right about the permit power, most of Epstein's critique was based on an incomplete caricature of permitting in theory and practice. This Article is the first to return comprehensively to the permit power since Epstein's critique and offer a deep account of the theory and practice of regulatory permits in the administrative state. Part I positions regulatory permits within the administrative state. We define what a regulatory permit is, outline the scope and scale of permitting in the regulatory state, and explain the different types and characteristics ...
In 1988, candidate George H. W. Bush was in a tight race for the presidency, behind in the polls to the Democratic challenger, Michael Dukakis. Stung by the D+ grade given by the League of Conservation Voters, Bush was searching for a way to claw back some of the environmental vote.' He saw an opening in wetlands. Perceived as worthless swamps and wasted development opportunities for most of our nation's history, conversion of wetlands for agricultural and urban land uses has resulted in a staggering loss of resources. Beginning in the 1970s, however, views started to change, with growing recognition of the valuable services wetlands provide to human populations-from flood protection and groundwater recharge to wildlife habitat. As a result, wetlands loss has increasingly been denounced as the result of paving "paradise [to] put up a parking lot." Well aware of this widespread concern, Bush announced in a major policy statement a national goal of "no net loss" of our nation's wetlands. This proved effective on the campaign trail, and, as President a year later, he adopted the goal as official government policy.
Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed. Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so. In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice - who should whittle and which knife they should use. In Part I we argue that the nature of the problem - the stick to be whittled - deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. In Part II, using examples from the fields of environmental and land use law, we develop a model to identify the different attributes of cumulative effects that drive massive problems and how these can distort or undermine policy responses. In Part III we explore the three different strategies currently used in administrative law to manage massive problems, showing each to be deficient. In Part IV we draw from recent scholarship on Dynamic Federalism, New Governance, and Transgovernmental Network theories to propose an effective strategy for agencies to whittle away at massive problems through loosely-linked weak ties networks of ...
