A Regulatory Wake-Up Call: Lessons From BP’s Deepwater Horizon Disaster

In learning from the BP disaster, there are two levels at which to understand what happened, and two kinds of lessons to draw: straightforward and complex. The straightforward lesson focuses on BP as a distinct entity, emphasizing the company’s culpability for its poor decisions. The complex lesson does not deny BP’s culpability but seeks to situate BP’s private actions within a broader regulatory context in order to identify systemic failures that contributed to the disaster. This Article delves into both sets of lessons, concentrating more on the “complex” explanation, which involves recognizing gaps in the statutory scheme and conflicts in agency incentives. Part II begins with a retrospective of the scope and scale of the worst environmental crisis in U.S. history. It then explores the simple explanation for the disaster, situating BP’s environmental and safety record against industry norms and practices, and contrasting BP’s actions with the corporate ethos described in their “beyond petroleum” ad campaign. Part III focuses on the complex explanation, identifying some of the regulatory dysfunctions that contributed to the disaster. While acknowledging that poor private decisionmaking was the central and primary cause of the Macondo blowout, this Part focuses on the regulatory and institutional structures that allowed the situation to unfold and details the points at which different regulatory choices might have fruitfully constrained or redirected private activities. It sketches out a widespread regulatory failure. In particular, this Part focuses on the Outer Continental Shelf Lands Act (OCSLA) permitting process, and the National Environmental Policy Act (NEPA) environmental analyses that are supposed to be required by that process. It details how structural aspects of the OCSLA, as well as cultural norms within the agency and regulated community, virtually assured that these processes would dwindle into mere paper-pushing exercises. Further, it suggests that these flaws had been obvious to critics for some time, in many ways making BP’s Gulf oil spill a wholly predictable disaster. Having connected the dots between the various statutory and regulatory regimes that should have prevented this disaster, Part IV of the Article takes a more meta-perspective in order to identify some overarching structural inadequacies in regulatory oversight of private risk management decisions. It focuses on an often-overlooked aspect of the regulatory capture problem—the implicit privatization that occurs when an industry’s voluntary standards are adopted as regulatory standards. Finally, the Article ends by drawing some lessons for developing better regulation going forward, both for offshore drilling and environmental assessment more generally

Cryptocurrency and the Myth of the Trustless Transaction

This article interrogates the claim that trust can be replaced with blockchain technology. Part I begins with an introduction that provides an overview of the trust issues surrounding cryptocurrency. Part II then outlines the role that trust plays in a financial market more generally, focusing specifically on the trust embedded in what cryptocurrency supporters derogate as a ‘fiat’ currency. Part III introduces the blockchain, as well as Bitcoin and cryptocurrency more generally. Part IV then tests the claims that Bitcoin eliminates the need for trust against real-world experiences of Bitcoin holders and markets. This section disaggregates the blockchain technology itself from how actual people typically use Bitcoin or any of the follow-on cryptocurrencies. It documents the many points at which cryptocurrencies shifts the locus of embedded trust, rather than eliminating the need for such trust. Finally, Part V concludes that rather than replacing trust, cryptocurrencies instead require users to repose their trust in less transparent, less reliable and less accountable parties. The ultimate message is that caveat emptor should be a consumer watchword and that users should understand that many legal protections they take for granted may not apply when purchasing cryptocurrency

The Climate for Human Rights

Climate change is the defining challenge of the 21st century. The United States government is currently ignoring the problem, but wishful thinking alone will not keep global mean temperature rise below 2ºC. This Article proposes a way forward. It advises environmental decision-makers to use human rights norms to guide them as they make decisions under United States law. By reframing their discretion through a human rights lens, decision-makers can use their existing authority to respond to the super-wicked problem of climate chang

Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. In the last two decades, however, U.S. environmental leadership has faltered. The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only shortfall. The United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. This white paper identifies ten of these critical, pending environmental treaties and explains their importance and the actions needed to fully join them. The failure of the United States to join these treaties undermines global environmental protection and undermines U.S. interests in protecting a wide range of natural resources. The treaties set out standards and create institutions designed to find and implement solutions to problems of critical importance. They have attracted support from other countries, including our closest allies. Indeed, several are among the most widely ratified treaties in history. In every case, the regimes these treaties have established are less successful without U.S. membership than they could be with the full engagement of the country with the largest economy and the largest environmental impact

Rethinking Sustainability to Meet the Climate Change Challenge

A group of environmental law professors formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. The members of the Collaborative gathered in the summer of 2012 to produce an intensive and collective assessment of sustainability in the age of climate change. Their writings examine the process of adapting the principles and application of sustainability to the demands of climate change, including framing the term sustainability in climate change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in formulating adaptation and resiliency strategies. Their work also contemplates the role of law and legal systems in crafting effective climate change adaptation strategies and considers feasible strategies in the context of specific examples

Consuming (F)ears of Corn: Public Health and Biopharming

Electronic article appears in journal ""American Journal of Law and Medicine."