Lessons on Race and Place-Based Participation from Environmental Justice and Geography

As scholars grapple with racism in Administrative Law, it is important to consider place-based scholarship from the perspectives of Environmental Justice and Geography. Both provide important insights into how administrative agencies can be instruments of strategic-structural racism and how administrative law can facilitate equity in regulation

Role of Knowledge Networks and Boundary Organizations in Coproduction: A Short History of a Decision Support Tool and Model for Adapting Multiuse Reservoir and Water-Energy Governance to Climate Change in California

Climate adaptation relies on theoretical frameworks of coproduced science and knowledge networks to produce acceptable outcomes for politically contentious resources. As adaptation moves from theory to implementation, there is a need for positive case studies to use as benchmarks. Building from literature on actionable science this paper presents one such positive case—the development of a hydropower and reservoir decision-support tool. The focus of this history is on the multiple phases of interaction (and noninteraction) between researchers and a semidefined community of stakeholders. The lessons presented from the Integrated Forecast and Reservoir Management (INFORM) system project stress that collaborations between managers and researchers were crucial to the success of the project by building knowledge networks, which could outlast formal processes, and by incorporating policy preferences of end users into the model. The history also provides examples of how even successful collaborative projects do not always follow the usual expectations for coproduced science and shows that, even when those guidelines are followed, external circumstances can threaten the adoption of research products. Ultimately, this paper argues for the importance of building strong knowledge networks alongside more formal processes—like those in boundary organizations—for effective collaborative engagement

How Algorithm-Assisted Decision Making Is Influencing Environmental Law and Climate Adaptation

Algorithm-based decision tools in environmental law appear policy neutral but embody bias and hidden values that affect equity and democracy. In effect, algorithm-based tools are new fora for law and policymaking, distinct from legislatures and courts. In turn, these tools influence the development and implementation of environmental law and regulation. As a practical matter, there is a pressing need to understand how these automated decision-making tools interact with and influence law and policy. This Article begins this timely and critical discussion. After introducing the challenge of adapting water and energy systems to climate change, this Article synthesizes prior multidisciplinary work on algorithmic decision making and modeling-informed governance—bringing together the works of early climate scientists and contemporary leaders in algorithmic decision making. From this synthesis, this Article presents a framework for analyzing how well these tools integrate principles of equity, including procedural and substantive fairness—both of which are essential to democracy. The framework evaluates how the tools handle uncertainty, transparency, and stakeholder collaboration across two attributes. The first attribute has to do with the model itself—specifically, how and whether existing law and policy are incorporated into these tools. These social parameters can be incorporated as inputs to the model or in the structure of the model, which determines its logic. The second attribute has to do with the modeling process— how and whether stakeholders and end-users collaborated in the model’s development. The Article then applies this framework and compares two algorithm assisted decision-making tools currently in use for adapting water and energy systems to climate change

Muddy Waters: Congressional Consent and the Great Lakes-St. Lawrence River Basin Resources Compact

After nearly a century of negotiations among the Great Lakes states, tribes, and provinces, a promising new agreement was recently ratified by the parties and recognized by Congress, this is the Great Lakes-St. Lawrence River Basin Water Resources Compact ( GLC ). Interstate compacts, like the GLC, may serve as a particularly useful tool for solving regional environmental problems which the federal government lacks the interest to resolve. However, due to constitutional strictures, interstate compacts are not binding unless Congress grants consent to the compact. This Note will focus on the GLC as a means to examine the current state of the law surrounding the Compact Clause of the United States Constitution. Part I briefly describes the necessary background information to understand the GLC and the 2000 amendment to the Water Resources Development Act ( 2000 WRDA ). Part II introduces the Compact Clause. Part III will examine why it is an agreement that is subject to the consent requirement of the Compact Clause. Part IV will discuss whether Congress explicitly or implicitly granted prior consent to the compact, when it passed the 2000 WRDA or the Weeks Act of 1911

Rules and Values in Virtual Optimization of California Hydropower

Optimization models for California’s hydropower system are designed to be decision-support tools and aids for climate adaptation decision-making. In practice, they fall short of this goal. One potential explanation is that optimization models are not more successful because they are built on, and depend on, a misrepresentation of law and politics. The legal reality of California’s hydropower system is a web of networked jurisdictions of multiple federal and state agencies, with varying levels of coordination, long periods of legally obligated stability with rigid rules, and prone to conflict, but with multiple procedures for conflict resolution. Barriers to climate adaptation from that mix vary according to where a given dam is located. The virtual institutional arrangements represented in optimization models are not a simplification of existing arrangements. Instead, they are a dramatic replacement. That replacement is deliberate and reasoned. As seen in two optimization models supported by the state of California, CALVIN and INFORM, the operation of the optimization function of computer models depends on a virtual system of rules that are centrally controlled, coordinated, nimble, and without the possibility of conflict (let alone conflict resolution). But that smooth virtual system comes with a real cost. Institutional economics suggests that this mismatch between existing formal law and represented law may upend the results of models, since value is determined from institutional context

Judging Science: The Rewards and Perils of Courts as Boundary Organizations

Courts have become increasingly important arenas for mediating between competing interests in the interpretation and implementation of science-informed public policies. This function becomes particularly pronounced in the deliberations over the implementation of detailed legislative mandates and administrative rules by federal agencies. These public policies often involve complex social-ecological system relationships and become enmeshed in “wicked problems” without clear resolution, and susceptible to intense rounds of litigation. This paper reviews the literature on boundary organizations, which serve the role of intermediary between the scientific community and policymakers, with an emphasis on adaptive decision-making processes in response to high levels of complexity and uncertainty. This model is then applied to trial and appellate courts, with particular attention toward how courts serve as a forum for the communication and comparative analysis of competing and conflicting scientific research. In this setting, the judge (or judges) can serve as a critically important gatekeeper in overseeing the inclusion or exclusion of scientific research and the testimony of expert witnesses during court proceedings. The discretion given to trial judges during appellate review underscores the pivotal role of the court of first instance in monitoring the admissibility of “best available science” in judicial proceedings. The benefits and shortcomings of having these societal functions fulfilled by judges, who are often not extensively trained in scientific methodologies and research approaches, are reviewed. Finally, recommendations for further study are offered to investigate the relative capacities of the courts as boundary organizations in greater detail

Conjunctive Groundwater Management as a Response to Social Ecological Disturbances: A Comparison of Four Western U.S. States

Recent severe droughts in U.S. western and Great Plains states have highlighted the challenges that socio-ecological disturbances can pose for governing groundwater resources, as well as the interconnections between groundwater and surface water and the need to manage the 2 in an integrated way. Conjunctive management recognizes these interconnections and can be used to mitigate disturbances and achieve a variety of water management goals. However, comparative studies of how and to what extent various states have implemented conjunctive management strategies are few. Here we compare and assess the use of conjunctive management practices in 4 western state —Arizona, California, Nebraska, and Texas—with a particular focus on groundwater. Special attention is paid to factors of geography and infrastructure, degree of administrative (de)centralization, and monitoring and modeling in relation to conjunctive management. Despite the commonality of bifurcated regimes for groundwater and surface water, all 4 states have responded to disturbances with conjunctive management strategies in various ways. Although it has groundwater management challenges similar to those in the other 3 states, Texas has overall been slower to adopt conjunctive management strategies

Climate and transportation policy sequencing in California and Quebec

We compare flexible low-carbon regulations in the transportation sector and their interaction and sequencing with greenhouse gas emissions trading systems in California and Quebec. As momentum builds for greater climate action, it is necessary to better understand how carbon markets and other low-carbon transportation policies influence one another. First, we demonstrate that emissions trading between California and Quebec has been asymmetric, with linking having little influence on carbon prices from California\u27s perspective but leading to a considerable cost reduction from the point of view of Quebec. Second, we present evidence that Quebec has replicated many of California\u27s low-carbon transportation policies that promote increased electric vehicle use, where Quebec has an advantage, while deferring to the Canadian federal government with regard to policies that incentivize the production of other low-carbon transportation fuels. Third, we demonstrate that while the stringency of the policy mix of carbon pricing and flexible transportation regulations has increased over time in both jurisdictions, the stringency of flexible regulations has been more aggressively ratcheted up and is expected to continue to dominate. Overall, our findings suggest that the policy sequence observed in California and Quebec can be attributed to the political economy benefits that the selected instruments confer to governments seeking to move from the middle towards the bottom of the clean technology experience curve. We discuss a number of important research questions and associated hypotheses emanating from our findings, which provide the basis for more in-depth studies involving a larger universe of cases and economic sectors

A Series of Tubes: Misunderstandings in Hydropower Governance and Optimization Modelling

This dissertation explores a core tension in contemporary hydropower governance between two competing views: hydropower as a machine and as a geography. Policymakers rely on economic and engineering optimization models to plan energy system adaptations to climate change. The developers of those models tend to narrowly view the hydropower system as a combination of infrastructure and operations constraints that are knowable and replicable. They rely on quantifications of values to produce “optimal” outcomes given constraints. This is hydropower the machine. But more holistically, hydropower is a geography. Hydropower transforms waterways, implicating competing interests and values in limited resources: surface water and the landscapes it traverses. The first paper of this dissertation, published in Natural Resources Journal, takes an institutional economics lens to introduce the tension between the two views. Through an examination of two optimization models and an overview of hydropower law in California, that article argues that otherwise well-regarded and well-funded models of the hydropower system nonetheless fall short of informing policy because those models rely on an incomplete concept of governance. A partial resolution of the tension may be possible. The history of the development of one hydropower optimization model confirms the bulk of literature on co-production and collaborative science research. The participation of hydropower practitioners into the research and modelling process influenced the parameters and inputs to the model. And in doing so, the collaborative research produced a product that was credible, legitimate, and salient. As such, despite the mechanistic view of hydropower prevalent in the optimization model, the end result fit better within the immediate political context as communicated by the oversight committee. Additionally, the combination of formal rules for collaboration and the simultaneous creation of informal knowledge networks helped to bolster acceptability of the product. Even after formal processes and funding ended, the knowledge networks continued and were able to facilitate the eventual implementation of the model as a decision support tool. Yet, a closer look at just one aspect of hydropower governance—litigation in federal courts—reinforces the divide between hydropower the machine and the geography. A review of the past century of federal hydropower caselaw offers a window in to the multiple and evolving ways that water and energy law influence one another. Ultimately that history embraces variation as a core characteristic of hydropower governance, a condition which is at odds with the practical needs of modelling