Transparency and Opacity in Environmental Grandfathering

Regulatory schemes designed to further sustainable development – whether through pollution control or natural resources preservation – often employ grandfathering, that is, granting legal rights based on activity that predates the regulatory regime. Transparency in the context of grandfathering must be nuanced. Government should be transparent about incentives to engage in environmentally valuable behavior, but government should not be transparent to the extent that grandfathering relies on prior behavior that is detrimental to the environment and sustainable development. Consider first grandfathering based upon prior behavior that is environmentally detrimental – for example, allocating fishing quotas based upon prior years’ catches. When a government wishes to distribute grandfathering rights to societal actors who currently engage in a behavior that will soon be restricted, the societal actors may engage in inefficient behavior to secure additional property rights. Such behavior may artificially increase pollution emissions, prematurely and inefficiently deplete natural resources, or both. To minimize the undesirable incentive, the government may employ a “retrospective allocation” based on activities that predate the limitations on resource access. Legal uncertainty makes it more difficult for societal actors to modify their behavior. Such systems have become increasingly common in the context of environmental and natural resource regulation.  Over time, societal actors likely will come to expect retrospective allocation, and act in anticipation by engaging in the behaviors on which they predict the allocations will be based. In order to combat this gaming of the system, the criteria for winning allocations must change over time for retrospective allocation to maintain effectiveness on an ongoing basis. In other words, too much transparency in this context leads to inefficient behavioral distortions and poor environmental consequences; opacity serves to ameliorate these outcomes.In contrast, consider grandfathering of rewards for positive behavior – for example, awarding credits to societal actors who voluntarily reduce pollution emissions before a regulatory regime requires such reductions, or who make factories fuel-efficient before increased fuel efficiency is required. Whereas distortions by actors in attempts to garner more grandfathering rights by engaging in environmentally detrimental behavior is undesirable and should be discouraged by relying on some measure of opacity, environmentally desirable behavior should be encouraged via transparency. Assuming the government has decided upon behaviors it would like societal actors to undertake, the government should announce those behaviors and be transparent about its desire to provide positive benefits in the future. Such transparency will “lock the government in” and create greater incentives for societal actors to engage in the desired behaviors early in time, thus providing environmental benefits even before a regulatory regime is enacted and become binding.Before proceeding, I believe it important to identify an important caveat to the arguments I discuss here. I do not mean here to endorse grandfathering as normatively desirable. As I discuss below, legal and economic commentators have criticized grandfathering as a form of “transition relief” that is, relief from a transition in legal rule. These commentators argue that grandfathering inefficiently discourages actors from anticipating legal changes; they assert that it would be more efficient to subject all societal actors immediately to new legal regimes. While (as I also discuss below) there are arguments in support of limited grandfathering under limited circumstances, the arguments I make here have application so long as whatever the reason, and whether or not it is normatively desirable grandfathering continues to play a prominent role in environmental regulation.The balance of this chapter is organized as follows. Section 1 provides an overview of the role of grandfathering in environmental regulation. Section 2 explains how opacity should figure prominently in the government’s allocation of grandfathered rights on the basis of environmentally undesirable behavior. Section 3 discusses how, in contrast, the government should be transparent in identifying desirable behavior that it will reward with grandfathered rights. Section 5 concludes

When Is Legal Methodology Binding?

Common-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors”—that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as “push factors”—that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of interpretive methodologies and also enables predictions about the stability of existing binding interpretive methodologies

A Functional Theory of Congressional Standing

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases in which (1) congressional plaintiffs validly seek information from the executive branch, and (2) the limited circumstance in which the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power—provided that enough legislators join the suit to lay claim to the relevant institutional bargaining power

Carbon Free Boston: Technical Summary

Part of a series of reports that includes: Carbon Free Boston: Summary Report; Carbon Free Boston: Social Equity Report; Carbon Free Boston: Buildings Technical Report; Carbon Free Boston: Transportation Technical Report; Carbon Free Boston: Waste Technical Report; Carbon Free Boston: Energy Technical Report; Carbon Free Boston: Offsets Technical Report; Available at http://sites.bu.edu/cfb/OVERVIEW: This technical summary is intended to argument the rest of the Carbon Free Boston technical reports that seek to achieve this goal of deep mitigation. This document provides below: a rationale for carbon neutrality, a high level description of Carbon Free Boston’s analytical approach; a summary of crosssector strategies; a high level analysis of air quality impacts; and, a brief analysis of off-road and street light emissions.Published versio

Null Preemption

This Article proceeds as follows. In Part I, I introduce the concept of null preemption. I discuss in greater detail the case of regulation of motor vehicle tailpipe greenhouse-gas emissions as a case study of null preemption. In Part II, I explore the contours of null preemption, and then describe, and distinguish among, several paradigmatic settings in which null preemption may arise. In Part III, I consider the normative case for null preemption. I conclude that the case is narrow. I also consider concerns of institutional choice and argue that even those who generally defend agency preemption of state law should be wary of “back door” assertions of null preemption by agencies, and should therefore support some congressional constraints on regulatory freedom. In Part IV, I consider how concerns of political economy may explain why null preemption has historically been uncommon, but may become more common in the future. Finally, in Part V, I offer suggestions as to how Congress might constrain regulators from invoking null preemption, and also for courts called upon to review claimed occurrences of null preemption

Framing Effects and Regulatory Choice

This Article proceeds as follows. First, in Part I, I describe the contributions of behavioral law and economics literature, and then focus on the notion of framing effects. In Part II, I provide an overview of the regulatory tools generally available to environmental regulators. In Part III, I elucidate the right to pollute and commodification critiques as applied to environmental regulation. In Part IV, I analyze the economically proper scope of the right to pollute and commodification critiques with respect to environmental regulatory instruments. In Part V, I first describe the differing frames of various environmental regulatory tools. I then describe how those differing frames give rise to framing effects that are likely to affect public perception of and reaction to different regulatory tools. In Part VI, I assess the prospect for refraining as a means to defuse objections to the introduction of market-based regulation. I conclude by outlining broad lessons that might be taken, as well as possible avenues for future research

Judicial Laterals

Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as lateraling. A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.\u27 In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, a federal district judge being elevated to the court of appeals), some judges occasionally engage in a practice to which we logically might refer as judicial lateraling : they move from being a judge in one judicial system to being a judge in another. Since judges are usually (inexorably) tied to a particular jurisdiction, the reality is that a judicial lateral will move either from a state judiciary to the federal judiciary, or from the federal judiciary to a state judiciary

Promoting Regulatory Prediction

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government actions is thus critical for the benefit of both private actors and society at large. In this Article, we consider market-based and non-market-based means by which to generate information about future government action. We find no perfect answer. We consider three market-based solutions—prediction markets, the use of equity markets to hedge against future government action, and machine-learning and predictive technologies—and three government-based solutions—greater transparency, the development of intellectual property rights in predictive information, and prediction-forcing regulation, which is regulation that requires private actors to make public predictions about future government action. None of these is a panacea. The market-based solutions founder on the limitations and thinness of markets. Government-based solutions come with significant structural downsides related to the division of authority among different levels of government (federal versus state versus local) and different branches of government at each level (executive versus legislative). We conclude that prediction-forcing regulation may be the most promising avenue, though it too is likely not a full solution

Prosecuting Federal Crimes in State Courts

Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution assumes that the “state having jurisdiction” will seek extradition. Another possible category of cross-jurisdictional prosecutions involves state-court enforcement of federal criminal laws. Although this category might include state-court prosecutions for violations of federal law that have been criminalized under state law—as the State of Arizona lately attempted in the immigration setting—the focus of this article is a potentially more controversial category: federal (or state) prosecutors pursuing a conviction for a federal crime, as such, in a state court. Proposals for shuttling federal criminal prosecutions to the state courts have been around for a while. In the early twentieth century, Progressives such as Felix Frankfurter and Louis Brandeis urged such a proposal as a way to ease the federal courts’ caseloads. Since that time, the caseload problem has only worsened as Congress has federalized matters once handled primarily by the states’ criminal justice systems, such as illegal gun possession, carjacking, domestic violence, and hate crimes. Many such statutes are duplicative of state laws and provide for a kind of concurrent prosecutorial jurisdiction. Members of the Supreme Court have warned that the federal courts are in danger of becoming “police courts” as criminal matters swamp the federal docket and take priority over civil litigation. And a report of the American Bar Association has called for a stop to the further federalization of crime and for a phased reduction of the federal judicial role in criminal law enforcement. Perhaps recognizing a lack of political will in Congress to halt or roll back the federalization of crime, modern scholars have sought to dust off the Progressive era proposals to enlist state courts in the prosecution of federal crimes. Paul Carrington, for example, has suggested that such a step would reduce federal expense by returning ostensibly local matters to local tribunals and local enforcement officials and allowing federal courts to devote themselves to matters that have a more legitimate claim on their scarce resources. He has argued that “[t]here is almost no apparent down-side to the use of state courts” because doing so could result in a reduction of the federal courts’ dockets by almost one-half, while state court dockets would be affected only marginally. In addition, the most recent Long Term Plan of the U.S. Judicial Conference proposed a partial repeal of the current statutory provision for exclusive federal- court jurisdiction over federal crimes; the Plan recommended “concurrent state and federal jurisdiction over certain federal crimes,” such as federal drug offenses and local violent crime. The Plan suggests that “federal prosecutions [of such crimes] could take place in state court, either by the U.S. Attorney’s Office (through cross-designation) or the state’s attorney.” Whether such intersystem law enforcement is desirable is anything but clear. The underexplored question that this Article addresses is whether such proposals are constitutional

An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review

What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges\u27 schedules to careful contemplation and reflection-contribute to the quality of appellate review. Fourth, a court\u27s adherence to traditional notions of appellate hierarchy, as exemplified by following its earlier precedents, has been deemed to produce better results. Finally, it is said that the independence of appellate judges-that is, the extent to which job features such as life tenure and a guaranteed salary tend to insulate judges from pressures to decide cases or issues one way or another-is of value. In this Article, we endeavor to evaluate empirically the relative quality of appellate review. To do this, we rely upon data obtained from the appellate review of bankruptcy matters. The current federal bankruptcy appellate structure provides an excellent setting in which to study appellate review because it offers litigants two paths for obtaining appellate review. First, after the bankruptcy judge issues a ruling, litigants may have the district court-in the person of a single district judge-review that ruling. Alternatively, the parties may agree (in circuits that have them) to have the bankruptcy judge\u27s ruling reviewed by a panel of bankruptcy judges-a so-called bankruptcy appellate panel or BAP. Further appeal in both cases- whether from the district court or the bankruptcy appellate panel- lies with the proper federal circuit court of appeals. We have collected data on affirmance rates in and citation rates to appellate bankruptcy opinions. Analyses of the data generally-and analyses of the citation data in particular-support the notion that BAP decisions in our study are perceived to be of greater quality than are district court decisions. First, we find support for the proposition that courts of appeals are more likely to uphold upon review the conclusions of BAPs than district courts. Second, BAP decisions are, with statistical significance, cited more frequently by bankruptcy courts, BAPs, federal courts of appeals, and courts in other circuits than are district court decisions. Only district courts are not more likely .to cite BAP decisions than decisions rendered by district courts