Implementing the National Bioengineered Food Disclosure Standard

In July 2016, the National Bioengineered Food Disclosure Law was passed to establish a mandatory national system for disclosing the presence of genetically-engineered material in food (GMOs). The federal law preempts state and local initiatives to create labeling systems. This essay first analyzes the benefits and drawbacks of having a national GMO law rather than a patchwork of state laws. Then it provides commentary on how the USDA can create an effective and accessible labeling system, using scannable Quick Response (QR) codes.. The essay envisions a retail food system in which all consumers can easily and usefully obtain reliable information about GMO content and potentially other food characteristics

Regulation by Third-Party Verification

This Article proposes greater governmental reliance on private auditors to enhance the achievement of regulatory objectives. Regulatory failure is a growing problem as governmental agencies lack resources to adequately monitor and detect noncompliance. Third-party verification partially privatizes the regulatory function by requiring regulated entities to hire independent third parties to verify compliance data and make compliance determinations. As a type of privatization, third-party verification presents both opportunities and potential problems. The key issue, as in other forms of public-private governance, is ensuring that accountability and other public values are protected when private actors perform functions that are fundamentally public. This Article argues that, as third-party verification is incorporated into regulatory frameworks, it must be carefully regulated itself. Regulatory agencies must assume the role of “auditing the auditors” through making and enforcing rules that govern who can serve as a verifier, how regulated entities select verifiers, and how verifications are performed. With well-designed rules and strong governmental oversight, third-party verification has the potential to cost-effectively improve the implementation of social regulation

Harnessing Private Regulation

In private regulation, private actors make, implement, and enforce rules that serve traditional public goals. While private safety standards have a long history, private social and environmental regulation in the forms of self-regulation, sup-ply chain contracting, and voluntary certification and labeling programs have proliferated in the past couple decades. This expansion of private regulation raises the question of how it might be harnessed by public actors to build better regula-tory regimes. This Article tackles this question first by identifying three forms of strong harnessing: public incorporation of private standards, public endorsement of self-regulation, and third-party verification. It then analyzes eight third-party verification programs established by six federal regulatory agencies to derive les-sons about what makes a program successful and to develop recommendations to federal agencies about when and how they should use third-party verification

Enforcing Cap-and-Trade: A Tale of Two Programs

This Article uses the histories of the ARP and RECLAIM to show that even when monitoring and enforcement provisions for cap-and-trade programs are designed in a similar way, the resulting enforcement systems and enforcement outcomes may be very different. Part I of the Article tells the enforcement story of the ARP. It appears to be a story of regulatory efficiency and success. Part II tells the enforcement story of RECLAIM. While not a failure, RECLAIM enforcement seems to have been full of difficulties that necessitated large amounts of administrative time and resources. This part presents the results of an empirical analysis of RECLAIM enforcement actions from 1994 through 2006. The analysis shows that RECLAIM had many more enforcement actions than the ARP, despite the fact that the ARP was a much larger cap-and-trade program in terms of the volume of pollution regulated. Similarly, the amount of monetary penalties assessed in RECLAIM for non-compliance was much larger than the amount assessed in the ARP

Regional Climate Regulation: From State Competition to State Collaboration

States have often been theorized to act as competitors in crafting their environmental policies, engaging in either a “race to the bottom” or a “race to the top.” In the recent development of climate law, however, it is state collaboration and cooperation rather than state competition that have emerged most strongly. This Article first discusses how the theories of competitive state behavior would have predicted states to behave in the absence of federal action and describes the contrasting extent to which states have engaged in collaborative initiatives. The Article then analyzes why states have been motivated to collaborate in climate law

Harnessing Private Regulation

In private regulation, private actors make, implement, and enforce rules that serve traditional public goals. While private safety standards have a long history, private social and environmental regulation in the forms of self-regulation, sup-ply chain contracting, and voluntary certification and labeling programs have proliferated in the past couple decades. This expansion of private regulation raises the question of how it might be harnessed by public actors to build better regula-tory regimes. This Article tackles this question first by identifying three forms of strong harnessing: public incorporation of private standards, public endorsement of self-regulation, and third-party verification. It then analyzes eight third-party verification programs established by six federal regulatory agencies to derive les-sons about what makes a program successful and to develop recommendations to federal agencies about when and how they should use third-party verification